Following the death of Ruth Bader Ginsburg, the fate of Obamacare is newly in doubt.
Until last week, it seemed like a reasonably safe bet that the statute would survive the latest lawsuit challenging its constitutionality, given that Chief Justice John Roberts had previously sided with his four more liberal colleagues and voted to uphold it twice before, and there was no particular reason to suspect that he’d suddenly reverse course in the middle of a pandemic. But with Ginsburg gone and Senate Republicans likely aiming to confirm a new justice before the election, the case, which is scheduled for oral arguments on Nov. 10, could very well be decided by a bench stacked 6–3 in favor of its conservatives—a prospect that, for obvious reasons, has Democrats very concerned.
Fortunately for the millions of Americans who rely on it for their health coverage, the Affordable Care Act isn’t necessarily toast quite yet, even in that scenario. At this point, there are two reasonably realistic routes that would allow the law to live on.
First, there’s a political route: Democrats could win control of Washington in November, which would give them a chance to tweak the ACA in order to nullify the lawsuit. Second, there’s the legal route: Roberts could come to the ACA’s rescue again by bringing over an extra vote from his right, by persuading another conservative justice that it’s the politically wise choice.
The case now pending before the court, California v. Texas, centers on Obamacare’s individual mandate—its unpopular requirement that Americans obtain health insurance or pay a penalty to the IRS. Back in 2012, Roberts famously upheld the rule as a tax. But when Republicans jammed through their giant tax cut bill in 2017, they dropped the fine for going without coverage to $0. GOP-led states behind the current challenge contended that meant the mandate was no longer a tax and therefore was unconstitutional, so the entire ACA should be struck down.
It should be fairly easy to make this case go away if Democrats retake the presidency and Senate in the coming election. All they would have to do is pass a law restoring a small version of the mandate’s tax penalty or scrapping it from the books entirely. (The second approach might make more sense politically, but it could also be more difficult since it would probably require ending the filibuster, while restoring the penalty in some form could happen through simple budget reconciliation). Either way, fixing or nixing the mandate would leave the lawsuit moot, allowing the ACA to stand. And while the case is scheduled to be heard in just a few weeks, Democrats would likely have until a decision arrives, likely in June for a case like this, to make their move. In theory, a ruling could come sooner. But if it really looked like the conservatives were determined to strike Obamacare down, the court’s remaining liberals could stall for time by working on their dissents very, very slowly.
But even if Democrats don’t win back control of the Capitol or the White House, Obamacare still has a fighting chance as long as Roberts decides it’s in his long-term interest to protect it once again and can persuade one of the GOP-appointed justices to go along with him. While that may sound like wishful thinking to some Democrats right now, there are several reasons to think that could happen.
First, it seems unlikely that Roberts actually wants to strike down Obamacare at this juncture, since it would cost him valuable political capital. The chief justice is sometimes described as an “institutionalist” because of his concern for the court’s public image. Another less flattering, and I’d say more realistic, way to put it is that Roberts is a low-key reactionary who prefers to pursue a radical agenda gradually and as quietly as possible without looking like an outright party hack, in order to minimize any blowback. His decisions upholding most of the health care law in 2012 and saving it again in 2015 have helped on that front by giving the court a patina of impartial, bipartisan legitimacy, even as he’s raced it in a deeply conservative direction on voting rights, campaign finance, affirmative action, states’ rights, abortion, and other crucial issues.* Abolishing Obamacare now would undo all of that hard PR work and strengthen the recent calls from progressives for Democrats to eventually pack the court. Keeping the ACA alive, on the other hand, might quell the commotion.
But which conservative might go along with him? Based on one of his recent rulings, the most likely suspect might be Justice Brett Kavanaugh.
The reason has to do with his stance on an issue known as severability. When judges rule that one piece of a law is unconstitutional, they have to decide whether to kill the entire statute or just saw off the offending portion while leaving the rest intact. There are different theories about how courts should make that choice, but it basically boils down to a judgment call about whether the rest of the law can function as intended without the piece that’s about to be lit on fire and trashed.
In California v. Texas, the Republican plaintiffs claim that the mandate is so central to Obamacare that the justices should simply abolish the whole law if that piece is unconstitutional. The Democrats defending the health law have argued the opposite: If the mandate is unconstitutional, they say the court should just sever it and let the rest of the law stand, since Congress clearly decided in 2017 that Obamacare could work without it. In the end, this is by far the most important question in the case, since the mandate is already functionally gone and it doesn’t matter much one way or the other whether it continues living on paper.
Kavanaugh, bitter as he might be over his confirmation hearings, seems predisposed to agree with the Democrats. He signaled so much in a recent case titled Barr v. American Association of Political Consultants, where he ruled that the court should surgically remove one section of a statute governing robocalls rather than junking the whole thing, reasoning that “the Court’s cases have … developed a strong presumption of severability.” Later in the opinion, he practically telegraphed a warning at the Republican states seeking to take down the ACA: “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.”
It is very possible that Kavanaugh will go back on his words for the sake of dealing a quick death blow to a law treasured by Democrats. But it’s just as easy to imagine that Roberts will convince him to treat this case as an opportunity to take a principled stand on a technical issue of jurisprudence while accumulating some political goodwill from moderates that might keep the 6–3 majority alive into the future, when the court’s conservatives can quietly and ruthlessly slice other Democratic laws down to size. Obamacare could survive again because, for better or worse, the chief justice and Kavanaugh decide to play the long game.
Correction, Sept. 23, 2020: This piece originally misstated that the Supreme Court again saved Obamacare in 2014.