Analysis

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Without Ginsburg, High Court May Still Keep ACA Intact

By Kevin Stawicki · September 22, 2020, 11:25 PM EDT

The death of U.S. Supreme Court Justice Ruth Bader Ginsburg has ignited new fears that the sudden opening on the bench might lead to the end of the Affordable Care Act in a closely watched case before the high court, but experts cautioned that the health insurance law's fate is far from sealed.

The case California et al. v. Texas et al., in which Republican state attorneys general are looking to sink the entire ACA, is set for oral argument at the Supreme Court on Nov. 10, a week after the presidential election. President Donald Trump has said he will announce a new Supreme Court nominee on Saturday, and Republicans may vote on a new justice well before the election.

"This is a life or death moment," Sen. Chris Murphy, D-Conn., said Tuesday during a call with reporters to discuss what the vacancy on the court means for the landmark law. "Donald Trump has made it clear he is only interested in putting people on the Supreme Court who will overturn the Affordable Care Act."

Democratic strategists have similarly insisted that the Republican-led constitutional challenge to the ACA is the main reason Republicans are rushing to hold a vote to confirm a nominee this year.

"That is why they are in this all-fire rush to get a justice on the court," said Democratic strategist Brad Woodhouse, executive director of Protect Our Care, an organization that backs the ACA. "It is now a health care election on steroids."

But legal experts said the suit, led by Texas Attorney General Ken Paxton and other Republican attorneys general with backing by the Trump administration, is much more likely to result in a technical ruling that keeps the law intact even without Justice Ginsburg on the bench.

"It's frankly an overreaction and a symptom of fear about other issues," Seth J. Chandler, a law professor at the University of Houston Law Center, said of concerns that the ACA will fall. "This is the first case of import that might come before a new justice, and therefore people are fearful that the new justice will be conservative on lots of issues."

Republicans' argument in the case is that Congress' elimination of the tax penalty in the ACA's individual mandate to maintain health insurance — previously upheld under congressional taxing power — rendered the mandate unconstitutional, and that the mandate's importance means the entire ACA must fall.

The Fifth Circuit agreed with Republicans regarding the mandate's constitutionality, but told a Texas federal judge to reconsider a ruling that deemed the whole ACA null and void. The Supreme Court, which has rejected two prior attempts to gut the ACA, in March agreed to resolve the high-stakes showdown.

Legal experts say there are three main paths the court could take. The court could find that the plaintiffs lack standing, in which case the suit would be tossed, or it could find that the individual mandate after 2017 is severable from the rest of the ACA. The last possibility is that the high court will affirm the district court's ruling that the individual mandate is so central to the ACA that as it falls, the rest of the law falls with it.

Of these three, the issue that is most likely to decide the case is the legal doctrine of severability. The doctrine asks whether Congress would have wanted the ACA to remain on the books without the mandate, should it be deemed unconstitutional. Democrats have argued that Congress spoke loud and clear when it declined in 2017 to repeal the ACA and then settled for changing the tax penalty to zero.

But Chandler said the issue of severability isn't likely to cause significant disagreement on the court.

"Severability is not something that conservatives and liberals usually fight about. People are not protesting in the streets about severability," Chandler said. "It strikes me as the kind of issue on which the justices might well agree even if they disagree on issues like abortion, gay marriage or federalism. This is a simpler case."

Whether or not a justice is seated on the court before Nov. 10 is also unlikely to make a material difference in the outcome of the case, experts say. If the seat is empty by the time oral arguments are held, one outcome is that there is a 4-4 split and the case would be remanded to the Trump-appointed lower court judge to do another severability analysis.

"That decision would not end the ACA on the date of the decision, and there would continue to be ongoing litigation potentially spanning a long period of time," said Susan M. Nash of Winston & Strawn LLP. "It's more likely there would be legislation that would be enacted to make reforms before that would happen."

There is also the possibility that Justice Neil Gorsuch or Justice Brett Kavanaugh side with the liberal wing along with Chief Justice John Roberts in agreeing that Congress made clear that the individual mandate was severable from the rest of the ACA because lawmakers gutted the individual mandate and made it a requirement without an enforcement mechanism.

Even if the seat is filled, the court still needs five justices to overturn the court of appeals, and those votes are most likely to come from currently seated justices because a Trump appointee would be unlikely to vote in favor of severability, said Katrina A. Pagonis of Hooper Lundy & Bookman PC.

If the seat on the court is not filled until after oral arguments in the case, Pagonis said the landmark law could ultimately be invalidated if the case makes its way back to the Supreme Court with a new conservative justice on the bench.

"That's where the ninth justice could be an issue because you could have — even without Chief Justice Roberts — an appetite on the court for five justices to conclude that the ACA is unconstitutional," she added.

Experts agreed that Justice Ginsburg would not have been enthusiastic about invalidating the most hotly contested statute of the last decade by mistake, the central argument the GOP states are making in the case.

"I don't believe Justice Ginsburg would have been sympathetic to it," Chandler said. "I think it's quite likely the new justice won't be sympathetic with it either because it's a stupid argument."

In 2012, Chief Justice Roberts sided with the liberal wing of the court, including Justice Ginsburg, in National Federation of Independent Business v. Sebelius . The 5-4 majority found that the individual mandate violated the Commerce Clause, but because it falls under Congress' taxing powers, it may stand. Justice Ginsburg said in her concurring opinion that the mandate could also survive under the Commerce Clause.

Pagonis said the late justice's record in cases like NFIB v. Sebelius and her respect for the separation of powers makes it a near certainty that she would have been the formidable fifth vote needed to uphold the law.

"By and large, Justice Ginsburg's voting record had a broader view of Congress' scope of authority checked more by civil liberties, and so that kind of judicial temperament and approach would be more consistent with finding a way to keep Congress' enactment enforced," Pagonis said.

California Attorney General Xavier Becerra, who's leading the coalition of Democratic states defending the ACA, said in a statement that the landmark law isn't going anywhere anytime soon.

"[The ACA] has been the law of the land for ten years and we are optimistic that the court will once again rule in favor of protecting it," he said.

Representatives for the other attorney general's offices and the U.S. Department of Justice did not immediately respond to requests for comment Tuesday.

The petitioner states are represented by their respective attorneys general, led by the California Attorney General's Office.

The respondent states are represented by their respective attorneys general, led by the Texas Attorney General's Office.

The federal government is represented by the U.S. Department of Justice.

Ohio and Montana are represented by their respective attorney general's offices.

The cases are California et al. v. Texas et al., case number 19-840, and Texas et al. v. California et al., case number 19-1019, in the Supreme Court of the United States.

--Additional reporting by Jeff Overley. Editing by Jill Coffey.

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