Getting rid of the Affordable Care Act would result in more than 20 million people losing their health insurance. So naturally, that's what Republicans are spending their time trying to do.

Tuesday morning, the Supreme Court held oral arguments in California v. Texas, the latest Republican lawsuit seeking to take healthcare away from millions of Americans.

We've already been here. Twice. But, just to remind us what hypocritical liars they are, the same Republicans who campaigned on healthcare last week sent their lawyers to SCOTUS this week to argue that the entire ACA should be struck down.

There's nothing quite like spending your morning listening to Supreme Court arguments about whether your health insurance should be taken away!

At the end of the day, however, ACA defenders appear to have found themselves with an unlikely ally who just might help the ACA live to fight another day.


Here's the deal

There are essentially three questions that the Court has to answer in this case — and Republicans need the justices to answer all three questions in their favor in order to prevail.

The three questions are:

  1. Standing: Do the states have standing to sue?
  2. Merits: Is the $0 individual mandate unconstitutional?
  3. Severability: If the individual mandate is unconstitutional, can it be severed from the rest of the ACA or does the whole thing have to be thrown in 2020's dumpster?

If the answer to any one of these three questions is no, the ACA will be saved. If the answer to all three is yes, tens of millions of people will lose their health insurance.

Standing

If the parties don't have standing to sue, that ends the case right there. Article III of the US Constitution says that federal courts can only hear actual "cases" or "controversies." In practice, this means parties have a few hoops to jump through to show that they have standing to be in court at all.

Standing is a constitutional requirement; if you don't have standing to sue, the court won't even get to the merits of the case. So if the states don't have standing, the case is over. However, putting more limits on standing in cases like these could also prevent future lawsuits challenging Republican bullshit. So winning on standing is not really a best-case scenario.

The Merits

The second question gets to the actual merits of the case. As you probably remember, the Supreme Court has already looked at whether to invalidate the ACA on two separate occasions.

In 2012's NFIB v. Sebelius, the first of the ACA cases, the Court looked directly at whether the individual mandate was constitutional. In the end, SCOTUS decided that the individual mandate wasn't a constitutional exercise of the Commerce Clause (and I could write an entire article about all of the reasons that was fucking terrible, but I will spare you for now), but that the individual mandate was constitutional as a tax.

In 2017, Republicans failed to repeal the ACA despite holding the House, the Senate, and the White House. What they did succeed in doing was lowering the tax to $0 for people who did not comply with the individual mandate.

It's important to remember, here, that Republicans tried to repeal the ACA and were unable to do so — because now they're trying to repeal the ACA through litigation, instead. Their entire argument is that the individual mandate is now unconstitutional as a tax because they, themselves lowered the penalty to $0.

Conservatives very well might have the votes to invalidate the individual mandate this time around. But right now, it's looking like that may not matter, because of ...

Severability

Severability comes into play when a court decides that part of a law is unconstitutional. If a part of a statute is unconstitutional, the court has to consider whether the rest of the law can stand on its own with the unconstitutional part removed.

So, if SCOTUS does find that the individual mandate is now unconstitutional, it then has to decide whether the individual mandate can be severed from the rest of the ACA. It's pretty clear to most legal experts that the answer, here, should be, "Yes, of course it's severable." There's no reason that protections for preexisting conditions, for example, should be wiped out because the individual mandate is gone.

But here in the year of our Satan 2020 and with two-thirds of the Supreme Court having been appointed by Führer Trump, it is far from a lock that the highest court in the land will give two fucks about silly things like "precedent," "intellectual honesty," and not taking healthcare away from tens of millions of Americans.

Amazingly, oral arguments seemed to indicate that our healthcare's saviors just might end up including John Roberts and none other than Trump sycophant and alleged sexual predator Kegs Kavanaugh.

John Roberts did not surprise too many people when he pointed out that "Congress left the rest of the law intact when it lowered the penalty to zero." In both of the earlier ACA cases, Roberts sided with the Court's liberal bloc to uphold its constitutionality. And since he also actually cares about things like protecting the Court's legitimacy, it seemed like his vote would probably stay the same.

Justice Kegstand, on the other hand, surprised most court watchers when he remarked from the bench that, "It does seem fairly clear the proper remedy would be to sever the mandate provision and leave the rest of the law in place."

If Roberts and Kegs both side with Justices Sotomayor, Kagan, and Breyer on severability, the rest of the ACA will remain intact even if the GOP wins on the other two issues. So unless those two change their minds in a big way in the coming months, it seems like our healthcare will, once again, be saved by the Supreme Court.

That is, assuming we can trust John Roberts and Kegs Kavanaugh on this one, which, well, we are just saying.

[YouTube / Courthouse News / NYT / Urban Institute]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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