The Supreme Court heard oral arguments today in a case that holds the entirety of the Affordable Care Act in the balance, and justices appeared likely to strike down the law's individual mandate as unconstitutional.
However, some expressed significant skepticism that this provision is not severable from the remainder of the law. Legal experts said the flow of the discussion indicates that there are enough votes to retain the ACA.
Susan Feigin Harris, partner at Morgan Lewis with a focus in healthcare, told Fierce Healthcare that it appeared that probing from both Chief Justice John Roberts and Justice Brett Kavanaugh was critical of inseverability.
She cautioned, though, that questioning during an oral argument isn't necessarily a perfect tell of how a ruling could go.
"Everyone knows that you can’t necessarily rely on questions as being an indication of the determination," she said. "Both Kavanaugh and Roberts seemed to be pushing and sort of looking for a reason to uphold the ACA."
My sense is that there are likely at least 5 votes (3 liberals + Chief & Kavanaugh) for finding the "mandate" severable from the rest of the #ACA. The presumption in favor of severability will likely be too steep a hill for the challengers to climb.— Joe Palmore (@palmore_joe) November 10, 2020
This is good news, and about where I suspect the Court will land. https://t.co/El88mOw6kt— Nicholas Bagley (@nicholas_bagley) November 10, 2020
Kavanaugh, a Trump administration appointee, said that there is a large body of precedence in favor of severability, and noted that Congress' choice of language when it zeroed out the mandate penalty in 2017 doesn't align with a typical inseverability clause.
"Congress knows how to write an inseverability clause, and this language is different from how that usually looks," Kavanaugh said.
The severability question is at the heart of the case. Red states and the Trump administration argue that the mandate cannot be severed from the rest of the ACA, rendering the entire law unconstitutional should the mandate fall.
Blue states and the House of Representatives, however, counter instead that the mandate is severable, which would preserve the remaining provisions in the law should the mandate be struck down by the courts.
Legal scholars of both a conservative and liberal bent have largely sided with this analysis, and the case has been roundly criticized from such experts over the course of its years-long legal fight.
Roberts also pushed back on the inseverability argument, saying if it was Congress' goal to eliminate the law in its entirety when it got rid of the mandate penalty, it could have done so legislatively — but it didn't.
He said instead it's likely that Congress was aiming for a legal showdown that would allow the courts to toss the full law as it failed to do through legislation, but said that's "not our job."
Jeffrey Wall, acting soliticitor general for the United States, argued that the mandate is central to the functioning of the ACA, which renders it unable to be severed. And while zeroing out the penalty eliminated much of its enforcement power, he said the mandate could be considered more coercive now as a "naked command" for people to purchase health insurance.
This legal battle began in earnest when in December 2018 a Texas district court judge ruled that eliminating the penalty rendered the mandate unconstitutional, which then struck down the law in full. A federal appeals court also determined that the individual mandate was now unconstitutional but punted on the severability question.
The Trump administration initially declined to defend the ACA in court but later sided with red states in arguing that the law should be struck down in full.
So what's next? A waiting game for the industry until an opinion comes down. A ruling is expected by July, though Jonathan Adler, Johan Verheij Memorial Professor of Law at the Case Western Reserve University School of Law, writes for Reason that he suspects a ruling could come as early as February or March 2021.
If the law were to be struck down by the courts, it would be a massive blow to all segments of the healthcare industry. Industry groups representing both payers and providers have urged SCOTUS to uphold the ACA.
"BCBSA has filed a friend-of-court brief in this case demonstrating that in fact, deciding the legal fate of one of the ACA’s provisions – the individual mandate – does not and should not require invalidating the law," said Blue Cross Blue Shield Association President and CEO Scott P. Serota in a statement. "We urge the high court to consider the full scope of the ACA in deciding this case, and act in the best interest of the nation.”