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Why the Affordable Care Act might survive Supreme Court

Todd Ruger
Cq-Roll Call

Washington — The Supreme Court might not be as ready to wipe out the full 2010 health care law as its ideological balance would suggest, even if a new conservative justice fills the seat of the reliably liberal late Justice Ruth Bader Ginsburg.

The Trump administration and a coalition of Republican-led states have asked the Supreme Court to strike down President Barack Obama’s signature law that expanded insurance coverage to more than 20 million people, including popular provisions such as required coverage of preexisting medical conditions.

In this June 29, 2020, file photo, the Supreme Court is seen on Capitol Hill in Washington.

But such a sweeping outcome would cut against the court’s traditional legal approach, conflict with decisions from just last term and defy the current reality about how the law continues to work in the real world, legal experts with deep working knowledge of the Supreme Court said.

“This might be a case that will surprise some people who think it’s just going to attract the normal political alignments,” Roman Martinez, a high court litigator at Latham & Watkins law firm and a former law clerk for Chief Justice John G. Roberts Jr., said during a discussion hosted by Georgetown Law’s Supreme Court Institute.

The case centers on Republicans’ move to use the 2017 tax overhaul to nix the law’s penalty for most Americans who don’t get health coverage. The Trump administration and the Republican-led states argue that move made the mandate to buy insurance unconstitutional.

Yet the fate of the law hinges on a separate legal argument called “severability,” or whether a smaller part of the law that is found unconstitutional can be wiped out while leaving the rest of the law intact. Trump and the challengers say that the individual mandate is such a central provision to the whole 2010 law that if it he Supreme Court finds it unconstitutional that in turn means the remainder of the 2,000-page law “must also fall.”

Martinez characterized that argument on severability as “a very uphill battle,” as did veteran Supreme Court litigator Paul Clement of Kirkland & Ellis.

That’s because traditionally the federal courts look at what Congress intended to accomplish with a law, experts say in dozens of briefs in the case.

The House and other defenders of the law in say that intent is clear because Congress eliminated the penalty for individuals who don’t buy health insurance but left the rest of the 2010 law intact and operating for the past three years.

On top of that, Supreme Court rulings from the last term, which ended in June, underscore that the justices strongly presume that one unconstitutional part of a law can be carved out to let the rest of the law stand.

Justice Brett M. Kavanaugh, a Trump appointee, made that point most clearly in part of a majority opinion that was joined by conservatives Roberts and Justice Samuel A. Alito Jr. In the case, the court found a 2015 provision about robocalls unconstitutional but left the rest of the law in place.

“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Kavanaugh wrote.