Op-Ed: Will the Affordable Care Act survive its latest trip to the Supreme Court?

On Tuesday, the Supreme Court will hear the latest constitutional challenge to the Affordable Care Act, and the stakes are enormously high. Twenty-one million people currently get their healthcare coverage through the Affordable Care Act, and declaring it unconstitutional in the midst of a pandemic would be devastating to both those covered and the healthcare system.

Fortunately, the legal arguments against the law are weak, and if the justices follow the law the act should survive once again.

The law was also before the Supreme Court in 2012. In that case, National Federation of Independent Business vs. Sebelius, the court upheld the constitutionality of the Affordable Care Act in a 5-4 decision. One of the key issues before the court then was the constitutionality of the individual mandate, the requirement that people either purchase insurance or pay a penalty. The court held then, in an opinion by Chief Justice John G. Roberts Jr., that the individual mandate was a valid exercise of Congress’ power to impose a tax for the general welfare.

Still, four justices — Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel A. Alito Jr. — would have declared that provision and the entire act unconstitutional, and today we have an even more conservative court.

The case now being argued stems from a decision by Congress, in December 2017, to eliminate the penalty for individuals not purchasing health insurance. Texas and several other states brought a new lawsuit after the change in the law, arguing that it made the Affordable Care Act unconstitutional. They argued that the individual mandate had been upheld as a tax, but no longer could be characterized in that manner because Congress had eliminated the financial penalty for failing to purchase health insurance. The challengers argued that this made the entire act unconstitutional.

The Trump administration, rather than defend the federal law as the government usually would do, joined the challengers in arguing that the statute should be declared unconstitutional. California and several other “blue” states intervened to defend the law.

A very conservative federal district court judge in Texas agreed with the challengers and declared the entire act unconstitutional. The United States Court of Appeals for the Fifth Circuit, in a 2-1 decision, agreed with the challengers that the individual mandate no longer could be upheld as a constitutional exercise of the taxing power but sent the case back to the district court to consider whether this provision was severable from the rest of the law so that the remainder of the statute could be upheld. The Supreme Court agreed to hear the case before the matter was reconsidered by the district court.

This should be an easy case for the court. First, Texas and the challenging states lack standing to bring this suit. To sue in federal court, a plaintiff must be personally injured, and it’s very hard to see how the states objecting to the law are hurt by it — despite the fact they don’t like it. In fact, because there is no longer a penalty for not purchasing insurance, it is difficult to see how anyone is hurt by what Congress did in changing the law.

Second, even if somehow the court were to say that there is standing, and that this aspect of the act is unconstitutional, the provision is clearly severable from the rest of the law. Whenever a court declares one part of a law unconstitutional, the question is whether that means the whole law must be struck down. The Supreme Court has repeatedly held that there is a strong presumption in favor of severing the offending provision from a law, rather than finding the whole statute unconstitutional.

Ultimately, the question of severability is always one of congressional intent: Would Congress have enacted the rest of the statute without the invalidated provision? This is an easy question here, because Congress intentionally chose only to change one provision and not the rest of the law. In fact, in December 2017, there was a proposal, urged by the Trump administration, to repeal the entire Affordable Care Act, and Congress rejected this, with Sen. John McCain, near death, coming to cast the decisive vote to save the law. Thus, it could not be clearer that Congress did not mean to repeal the entire Affordable Care Act.

My only hesitation in predicting that the Affordable Care Act will easily survive this challenge is that everything about the law has been partisan from the outset. Every Republican in Congress voted against it. The last time it was before the court, four justices would have struck down the whole law. And Amy Coney Barrett, then a Notre Dame law professor, was sharply critical of the court’s 2012 decision — and especially of Chief Justice Roberts’ opinion upholding the act.

Still, given the clear answer to the legal issues present and a pandemic that continues to grow, I cannot bring myself to believe the court will end a law that provides 21 million people health insurance. This case is clearly one in which conservatives should practice the judicial restraint they are so fond of preaching.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.