Last week, the ACA was in court again. The state of Texas is the lead plaintiff arguing that since the mandate tax has been reduced to zero, it is no longer a tax and therefore the entire ACA is unconstitutional and needs to be struck down. Yeah, this is bananapants but it sounded convincing to at least two of the appeals court judges.
Dunno if anyone has requested this, but do you mind positing what happens if the ACA gets shot down? The courts questioning did not seem promising, so that scenario seems like one worth pondering.
So what happens?
This is dependent on the ruling of course but I am assuming that this case will eventually end up at the Supreme Court as there will be four votes for cert no matter the outcome in my opinion.
- If the Appeals Court rules that the district court is completely wrong on all counts, then nothing changes and the ACA individual market continues as usual.
- If the Appeals Court rules that the district court is right that the mandate is now unconstitutional but wrong in its severability analysis, the Appeals Court sends the case back to the district court for a new severability analysis. Right now the analysis says the mandate can’t be cut-off from the rest of the law so the rest of the law has to go.
- Alternative analysis could be that the individual market regulations has to go which would then be appealed and during the appeal, everything would be stayed as the case reworked its way through the Appeals Court and then SCOTUS OR
- that only the individual mandate needs to be severed and everything else is A-OK. At that point, I don’t think anyone defending the ACA would appeal.
- If the Appeals Court rules that the district court is 100% right, the case is going to the Supreme Court during which time the ACA continues to operate normally.
Assuming the Appeals Court rules 2-1 that the District Court is 100% right, the intervening defenders of the ACA, mostly Blue State attorney generals, would file an appeal to the Supreme Court basically saying that this ruling is throwing out a century of severability doctrine. The earliest the case would be argued would be the end of 2019 with a decision sometime in the Spring or early Summer of 2020. This would be a massive election issue. In King v Burwell, the “Moops” case, five justices who are still on the court plus one recent retiree (Kennedy) basically told the lower courts to actually use traditional doctrines when reading the ACA instead of the fevered dreams of movement conservatives. The same five justices who held in NFIB v Sebelius that the ACA was constitutional with an optional Medicaid Expansion are still on the court and I assume would appreciate not being trolled.
It comes down to whether or not Roberts wants to kill the ACA. I don’t think he does (or at least does not want his fingerprints on it) as he has had two opportunities to do so already and has not (despite taking a whack at the Medicaid expansion) especially at the height of an election season where the ACA will be a major element of the campaign.
There is a non-zero chance that the ACA would be struck down and rendered non-operational but I don’t think the risk of coverage loss would begin until 12/31/20.