How to Protect the Affordable Care Act From its Latest Legal Challenge
By Justin Slaughter
It shouldn't be sugar-coated: the death of Justice Ruth Bader Ginsburg is a blow to the progressive movement, the Democratic Party, and the wellbeing and safety of millions of Americans. The coming fight over an attempt by Donald Trump and the Senate Republicans to confirm a hard-right replacement to this trailblazing justice will be painful, and those of us who seek to keep the seat open for a President Joe Biden to fill may lose. What happens afterwards, both in terms of how the Supreme Court shifts to the right and whether Democrats seek to reform the Supreme Court to make it more fair in response, will have tremendous consequences for the country. There is a very real risk that key rights and freedom, from choice and the ability of the federal government to regulate greenhouse gases to the minimum wage and personal privacy, could be weakened or lost entirely
Yet, not every case or right is at equal risk. In fact, there is one "easy" trick that a Joe Biden Administration along with a Democratic House and Senate could do to protect the new crown jewel of the social safety net, the Affordable Care Act: restore the individual mandate but make it only a single dollar.
There have been so many lawsuits and legal threats against the ACA that it's easy to forget the particulars of each individual case, but here is a brief summary of the current threat. Back in 2017, when the Trump Administration and Congressional Republicans were working to cut taxes massively for the rich and corporations, key GOP Senators realized that they could pay for some of the tax cuts by reducing the mandate down to $0. This change was primarily seen as a way to cobble together money for more tax cuts, but it was also a thumb-in-the-eye at Democrats in the wake of the GOP's failure to fully repeal the ACA that summer.
Fast forward a few months, and some conservative state Attorneys General realized that this change might be a means of finally getting the Supreme Court to strike down the ACA on constitutional grounds. According to these conservative lawyers, the Supreme Court had upheld the ACA back in 2012 on the ground that the ACA was a tax via the mandate, which was a requirement to either buy insurance or pay a tax. With the mandate now at zero dollars, there was no tax to pay if persons did not want to buy insurance. As such, the mandate is no longer a tax but a coercive "command," and therefore the load-bearing structure of the law is now unconstitutional. Because the load-bearing part of the statute is unconstitutional, the entire statute, including the protections for pre-existing conditions, Medicaid-expansion, and prohibition on lifetime benefits limits, must fall.
If this all sounds tendentious, it is. The conservative lawyers were playing a lot of logical games to craft such an argument, not least that actions of Congress are presumed to be constitutional unless they are clearly not, that it was a separate law that seemingly harmed the ACA, suggesting the mandate alone could be stricken from the law, and the fact that key Republican Senators claimed they did not believe that they were striking down the ACA when they passed the tax cut bill.
Nevertheless, the case proceeded in some very conservative courts, and this argument was bought by a Trump appointee and a George W. Bush appointee. The case, now known as California v. Texas, was then appealed to the Supreme Court, with oral arguments set for one week after the election. The Trump Administration, in their zeal to take away health care from Americans, came out in support of the conservative AG's position and asked the Supreme Court this summer to strike down the entire ACA. As most Supreme Court cases involving the ACA have depended on her vote, social media has been aflame that her death means this case will succeed.
But there is a way for a Biden White House and a Democratic House and Senate to stop this case in its tracks in January, via a process that could be called "mooting the case." All legal matters in the U.S. depend on having a live or active controversy. Basically, we need a legal dispute to be real for judges to keep the legal process going. If something happens to end a dispute before a final judgment is reached, the case becomes "moot," and is dismissed without final judgment.
In the current case, the entire reason for the dispute is that the mandate is now $0. If the Democratic Congress and the Biden Administration were to make the mandate any notable amount of money, possibly as little as $1 dollar, the mandate would again be real even under the argument of the petitioners. In other words, the reason for the dispute would be moot, and the case would be primed to be dismissed. This could happen even after the oral argument, as long as the decision has not yet come out. Given that decisions typically take several months, it is reasonable to assume that this step could be taken during the last week of January, before the Court has issued its decision. This change could be made as part of a reconciliation bill, which may not be filibustered; the tax cuts bill that first cut the mandate down to $0 was itself a reconciliation bill.
Now, I expect some people will claim that this strategy is no guarantee of success. "What is to stop the new hard-right GOP majority on the Supreme Court from disregarding this change and striking the law down anyway?" Technically, nothing, just as there is nothing technically stopping the same majority from declaring the Democratic Party unconstitutional and ordering its leaders arrested. But let's keep some reality in this analysis. The truth is that the Courts, like any other body, are prone to the same pressures and cautions that Congress or the White House are also susceptible to. They do want they feel they can accomplish without massive backlash that destroys their own institutional power. If the Supreme Court were to fully throw its own rules and processes so utterly overboard, it would further spur Democrats to look at more aggressive steps to contain an out of control court, such as court-packing or jurisdiction stripping. The thing that has checked overly political courts in the past is the fear of Congress and the President taking away their powers.
It is worth remembering that the initial plan to take down the ACA via litigation was built around the idea that, as such a case would be decided after the Democrats no longer had control of the House, they could not fix the law. Such a scenario will likely no longer be true in 2021; any egregious action that seems beyond the pale in spring 2021 will just be an invitation for Democrats to play further procedural hardball, and that is the last thing Justice Roberts or his conservative colleagues want. The whole goal of the conservative movement to fill the judiciary is to create a lasting conservative judicial majority, not one that is blown up within six months of a new Democratic administration.
Ultimately, however, saving the ACA via this maneuver is a stopgap, not a panacea. With a new hard-right majority, it is reasonable to fear that a new legal challenge will come for the ACA that cannot easily be stopped or prevented by changing one line of the bill. And there are many other dangers to key progressive and Democratic goals and rights from a new 6-3 conservative court, including the power of the federal government to regulate greenhouse gases. Democrats need to be ready to confront a much more antagonistic judiciary next year and, if necessary, to take steps to contain it. Judges are political figures too, and they are susceptible to pressure. If Democrats want to be able to govern, they need to start figuring out how to deal with a judiciary that isn't just calling balls and strikes, but declaring that the GOP can hit the Democrats in the head with a bat without consequence. It's time to take a hard-look at reforming the judiciary so that it reflects America as it is today.
Justin Slaughter is a former General Counsel to U.S. Senator Ed Markey.