Don’t Over Rely on Justices’ ACA Questions

Don’t Over Rely on Justices‘ ACA Questions; Many Other Considerations Could Have Major Impact

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Justices' ACA Questions

WASHINGTON, D.C.. (November 10, 2020) - Those who try to predict the outcome of a Supreme Court case from the questions asked by the various justices should give those questions somewhat less weight than usual in today's argument in which the continued fate of the Affordable Care Act [ACA, Obamacare] is at stake, suggests public interest law professor John Banzhaf.

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That's because there are a number of unusual and important factors operating, he says.

FIRST, is the apparent lack of any widespread support for the Supreme Court to throw out the statute.

Unlike in many past cases with strong political implications, no Republican in Congress has filed an amicus brief supporting the challenge to the statute.

Similarly, most well known conservatives do not seem to support throwing out the entire statute, even if one part might be found unconstitutional.

Indeed, most advocates on all sides of the political and ideological spectrum seem to agree that the Court should not, and probably will not, throw out the entire statute.

A Major Health Crisis

SECOND is that the country is in the midst of a major health crisis - the COVID pandemic - which most agree will get far worst before it gets any better. Thus many citizens are depending on the act not only to continue their coverage, but also to prevent insurance companies from jacking up the rates of those who recovered from the disease.

Even if the Supreme Court's decision does not come down until last Spring when there is likely to be an effective vaccine as well as much more effective medical treatments for those with the disease, the grave concern about being without health insurance, or having to pay exorbitant rates to obtain it, will still remain strong among many members of the public and their legislators in Congress.

THIRD, it appears even more likely that the President's legal challenges, and his pledge to take his claims to the Supreme Court, will put the High Court in a difficult situation similar to 2000 where it may again be asked to decide who will be the next president.

In taking that case in 2000, and eventually awarding the presidency to the Republican, the Court lost an enormous amount of credibility, with many no longer seeing it as impartial and guided only by the law and legal precedent, but rather as becoming much more partisan than in the past.

The Supreme Court Follows The Election Returns

Because any such perception would severely damage the Court, its reputation and place in history, and the justices sitting on it, most - especially the Chief Justice - may well want to do whatever it might take to avoid this consequence.

As the old saying goes, "the Supreme Court follows the election returns," and here it will have watched the election of a far less conservative president, and one who pledged to keep and protect Obamacare which he helped bring about.

Fortunately for justices who, for whatever mixture of reasons, might not wish to strike down the entire states, there are at least three ways they could do, notes Banzhaf.

Indeed, to put it in other words, those seeking to invalidate the statute must succeed in persuading a majority of the justices regarding at least three key legal issues.

Initially, the justices must find that the challengers have legal standing to pursue the case; i.e., that they have (and or will have) suffered a real injury in fact if the statute remains in place.

Here it may be important to note that so many of the ACA questions were directed to the issue of legal standing.

However, since some of the arguments attacking standing were based upon alleged weaknesses in the factual record rather than pure issues of law, one avenue for the court would be to remand the case to permit the parties to supplement the record on this point.

Then, if standing is established, the justices must still find that the statute is unconstitutional because what many see as the linchpin - a real penalty for noncompliance - has been effectively removed.

ACA Questions: Justices Unwilling To Invalidate The Entire Act

But third, even if some portions of the lengthy law are found to be unconstitutional, that doesn't mean that the justices must invalidate the entire statute, says Banzhaf.

Thus, what may be the biggest "off ramp" for justices unwilling to invalidate the entire act would be to hold that those portions which are not constitutional can remain; i.e., that the unconstitutional portions can be "severed" from the remaining portions in order to save the act.

Such a ruling would permit many of the most popular and widely accepted portions of the current act - e.g., protection for those with preexisting conditions, protections for young adults who wish to remain covered under their parent's medical plan intact, etc. - while still permitting the Court to provide opponents with the minor victory of finding portions unconstitutional.

Banzhaf notes that if the Court chooses this latter approach, it can avoid a potentially damaging result while still applying the law to invalidate the one provision in question.