When the Supreme Court was expanding the rights of minorities and women back in 1950-1975, conservatives were strongly emphasizing the need for judicial restraint and condemning the Supreme Court as an activist court.  Now that the shoe is on the other foot, we are beginning to see how much conservatives really believe in judicial restraint and how activist they are willing to be to get what they want.

There are several doctrines that courts have traditionally used that “restrain” courts from reaching to strike down laws or at least from striking down more laws than they should.  Currently, there is the latest case challenging the Affordable Care Act.  This case claims that, when the Republicans passed there tax cut last year, Congress by setting the penalty for not complying with the individual mandate at zero made the entire Affordable Care Act unconstitutional.

To understand the theory, you have to go back to the decision upholding the individual mandate in 2012.  Under that decision, the individual mandate was only constitutional because it was a tax.  Under the theory being pushed by Republicans, because the tax is now set at zero, the individual mandate is unconstitutional. And the trial court — accepting this theory — found,  that because the individual mandate is unconstitutional, the entire act is unconstitutional.  This case is currently before the Fifth Circuit and the three-judge panel seemed likely to affirm — at least the finding that the individual mandate is unconstitutional.

Here is where the Republican arguments run afoul of their professed love of judicial restraint.  There are two key doctrines that should preclude striking down the Affordable Care Act — severance and the rule against implied repeal.  It is debatable whether the theory that the individual mandate is now unconstitutional is valid, and there are counter-arguments.  (For example while, under the original decision, it would probably be invalid to enforce the individual mandate with a criminal penalty, Congress has merely set the tax penalty at zero.  This decision means that there is no enforcement of the individual mandate, but zero valid enforcement does not make it unconstitutional.)

Severance is what was used in the 2012 decision.  While the Supreme Court found that the penalty provisions of the Medicaid expansion (cutting funding to the states that did not expand Medicaid), it “severed” those provisions from the rest of the Affordable Care Act (including the Medicaid expansion itself).  Under the judicial restraint version of severance, a court should only invalidate the part of an act that is clearly unconstitutional (or put in place an injunction that limits the modification of that act to render it constitutional if it is unconstitutional “as applied” in certain cases).  A more “in-between” version of severance asks if the statute would have passed without the unconstitutional provision.  Of course, severance is typically asked of the initial act.  Here, the initial act was constitutional.

Here, we are dealing with an amendment to the initial act.  In that case, the doctrine that is typically used is the bar on repeal by implication.  Put in its simplest term, the impact of an amendment that eliminates or amends a part of a statutory scheme should not be read as repealing an entire statutory scheme.  Instead, it should be interpreted in a way that limits its effect to those necessarily implicated by the amendment.  For example, imagine a state worker’s compensation scheme.  Part of that scheme might include some subsidy or special coverage for employers who hire people with a partial disability or other pre-existing condition that increases the risk of a disabling injury.   Now imagine a repeal of the that subsidy or special coverage or elimination of one source of funding for that subsidy making it difficult to fully subsidize that program.  While those changes may have some ripple effect on how the full scheme works, the rest of the scheme is not directly altered by those changes.  The doctrine barring repeal by implication would hold that the later repeal of part of the original legislative scheme should not be interpreted as repealing the full original legislative scheme.

In the case of the Affordable Care Act, the traditional conservative philosophy of judicial restraint would dictate the proper approach to the repeal of the tax penalty associated with the individual mandate.  Under this approach, the only question would be whether to invalidate the individual mandate.  However, as Congress only amended that part of the Affordable Care Act, courts would assume that Congress meant to keep the rest of the act intact — the requirements to cover pre-existing conditions, the exchanges, the employer mandate, the Medicaid expansion, etc.  After all, Congress had the opportunity to repeal the entire Act and declined to do so.  And, as the entire Act was constitutional when passed, the fact that Congress later made one provision of the Act unconstitutional does not make the rest of the Act unconstitutional.  (If anything, the questions about the validity of the individual mandate as amended should implicate the validity of the rest of the tax cut bill which only passed the Senate under the “Byrd” rule limiting it to changes to revenues and expenditures under the budget resolution.  If the final bill included non-budget changes, then it did not actually validly pass.)

Of course, the recent history of conservative judges does not build a lot of confidence that conservatives actually believe in judicial restraint.  This past year saw the Supreme Court overturn multiple prior decisions and one justice suggesting that the Supreme Court should not be bound by prior decisions.  The doctrine of judicial restraint dictates that courts should generally be bound by earlier decisions other than in exceptional circumstances.  A lot depends on what the Fifth Circuit rules.  If the Fifth Circuit rules that the tax law changes had the effect of repealing the individual mandate but that the rest of the Affordable Care Act is still in effect, I would be slightly surprised to see the Supreme Court even take the case.  If the Fifth Circuit invalidates the entire Affordable Care Act, the Supreme Court will almost certainly take the case (as it takes only four justices to vote to grant cert and the four liberal justices would almost certainly feel that they had nothing to lose by voting to grant cert).  And given the timing of any application, the Supreme Court would be hearing arguments either just before or just after the 2020 election — not what Republicans would want.

So we will see if the conservative justices on the Fifth Circuit will exercise judicial restraint or if health care and the Supreme Court will be topics one and two for the 2020 presidential election.