Mitch McConnell May Have Accidentally Saved Obamacare

The four justices stand in a row, smiling
Justices John Roberts, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh at the U.S. Capitol on Feb. 4. Leah Millis/Pool/Getty Images

On Nov. 10, just one week after the presidential election, the Trump administration will ask the Supreme Court to get rid of the Affordable Care Act. The case, California v. Texas, boils down to one question: Did Congress intend the Affordable Care Act to continue without its individual mandate, the requirement that most Americans buy health insurance? But last March, Congress definitively answered the question. It passed two “override” laws that save the Affordable Care Act. The Supreme Court must recognize these overrides and leave the Affordable Care Act intact.

congressional override is the legislative equivalent of a higher court overruling a lower court decision. To enact an override, Congress passes a statute that clarifies or reverses a court’s application of a federal statute. Congress’ authority to do this rests in Article 1, Section 1, of the Constitution, which vests all legislative powers in Congress. As Chief Justice John Roberts has recognized, “the final say on a statute is with Congress.”

In this case, the overrides are the Families First Coronavirus Response Act and the CARES Act. Congress passed these two laws to curb the economic fallout of the COVID-19 pandemic. But these laws offer more than economic relief. They also override the district court decision on appeal in California v. Texas, which ruled that the Affordable Care Act must fall. Congress overrode that decision by amending and extending the Affordable Care Act, making clear that the law stands, even without the individual mandate.

These overrides—like many other congressional overrides—have a common problem. They are a bit hard to spot. But they are clearly there, and they are clearly the law.

Sometimes Congress explicitly identifies an override. Often, though, it does not. Many overrides are implicit; Congress says nothing about the override even as it issues one. The Families First Coronavirus Response Act and the CARES Act are implicit overrides. But explicit and implicit overrides have the same legal effect. As Yale law professor William Eskridge and colleagues have noted, both types of overrides are the law. Thus, courts “must obey the override, unless it is a scrivener’s error or an unconstitutional directive.”

Here, the overrides are neither a scrivener’s error nor unconstitutional. The two laws deliberately expand the Affordable Care Act in response to the COVID-19 pandemic. Moreover, no one questions the constitutionality of either law. What matters is how these two laws override the district court decision that lead to California v. Texas.

The district court decision arose from an unusual intersection between a 2012 Supreme Court decision and a 2017 federal tax law. In 2012, the Supreme Court upheld the constitutionality of the Affordable Care Act’s individual mandate. The court found that the penalty for violating the mandate was a tax, which Congress could impose under the Constitution’s taxing power. Five years later, in the Tax Cuts and Jobs Act of 2017, Congress reduced the mandate penalty to $0. The mandate remained on the books, but it was meaningless.

A number of Republican-led states, bent on eliminating the Affordable Care Act, sprang to action. They filed suit claiming the Tax Cuts and Jobs Act rendered the individual mandate unconstitutional because a penalty of $0 is not a tax. Fair enough. Zero dollars is not a tax. But they didn’t stop there.

The plaintiffs then argued the mandate was “inseverable” from the rest of the Affordable Care Act. They based their argument on “congressional intent.” Congress, they claimed, never intended the mandate to be separated from the Affordable Care Act. If the mandate was unconstitutional and had to go, the rest of the Affordable Care Act had to go as well.

The district court bought the argument. It invalidated the entire Affordable Care Act. The decision was then appealed. On appeal, the Trump administration joined the plaintiffs, arguing that the mandate was unconstitutional and the Affordable Care Act had to go. A federal appeals court agreed that the mandate was unconstitutional but did not rule on whether the Affordable Care Act could be severed from the mandate. The case—and the severability question—now sit before the Supreme Court.

Together, the Families First Coronavirus Response Act and the CARES Act answer the severability question. As a practical and constitutional matter, there is no mandate. Congress knows this. It did away with the mandate by making it toothless in 2017. Since then, two federal courts have ruled the nonenforceable mandate unconstitutional. This shouldn’t, however, moot the entire law. Congress made this clear when it amended and expanded the Affordable Care Act—via the Families First Coronavirus Response Act and the CARES Act—to respond to the COVID-19 pandemic.

The two laws reference parts of the Affordable Care Act by name or statute number a half-dozen times. They incorporate specialized Affordable Care Act terms, such as “grandfathered plans” and “minimum essential coverage.” They fund health programs created by the Affordable Care Act, such as the Community Health Center Fund. Most notably, the two laws expand the Affordable Care Act’s preventive services benefits. The Affordable Care Act now covers COVID-19 testing, preventative care, and vaccines—all without copays or deductibles. Moreover, patients who test positive for COVID-19 under these new benefits cannot be denied coverage or charged a higher premium for Affordable Care Act coverage. Congress did this and more, all without the mandate.

It should now be impossible to see the mandate as inseverable from the rest of the Affordable Care Act. Congress did not see it that way when it passed the CARES Act. Indeed, Congress overrode the district court by expanding the mandateless Affordable Care Act. The Supreme Court should recognize and apply Congress’ overrides when it rules in California v. Texas.