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After today's #SCOTUS oral argument in the case challenging the #ACA, I’m cautiously optimistic the law will survive. Even if the Court finds the mandate unconstitutional, Chief Justice Roberts & Justice Kavanaugh seem likely to say it's fully “severable” from the rest of the law
Justice Kavanaugh said removing just the individual mandate was a “straightforward” result & that it “seems clear” that the 2017 Congress wanted to preserve the pre-existing condition protections when it zeroed out the tax penalty
Chief Justice Roberts said it’s hard to argue that the 2017 Congress wanted the entire law to fall when that same Congress didn’t repeal the entire law.
Based on the Justices’ questions today, it’s not clear that a majority of the Court would find the individual mandate with a $0 tax constitutional – but it sounded more likely than not that a majority would strike only the mandate & allow the rest of the law to survive.
The Chief Justice’s first question was about standing – whether Texas and the individuals are actually harmed and therefore able to sue – and the rest of the Court asked a lot of follow up questions on that issue.
It’s notable that the Trump Administration today clearly said that the Court should strike down the #ACA’s pre-existing condition protections, along with the rest of the law.
None of the Justices asked the Trump Administration about its request to invalidate the entire ACA but allow it to keep enforcing some, unspecified, provisions – it doesn’t seem like the Court is going to send the case back to the lower courts as the Administration asked.
It’s impossible to definitively predict a case outcome based just on oral argument – things can change & we won’t know the ACA’s fate until the Court issues its written decision – but based on what we heard today, there’s reason to think the ACA could survive.
