Now that we know that our long national nightmare is almost at an end, it’s time to return to looking at the mess that he has left behind.  And on Tuesday, the Supreme Court will be looking at one of the messes that Trump created — the continued validity of the Affordable Care Act.

While the exact issue arises from the “Cut Trump’s Taxes” tax legislation passed in 2017 by some very unusual procedural maneuvers, the core of the issue comes from the Court’s decision upholding the Affordable Care Act, in part, in 2012.   Extreme conservative lawyers are partially right about that decision.  It was an atrocious decision, but not for the reasons identified by the far right.

For seventy-five years, from 1938 to 2012, the Supreme Court had taken a very expansive view of the Commerce Clause (which allows the federal government to regulate interstate and foreign commerce) and the Necessary and Proper Clause (which allows the federal government to pass legislation that is related to the fields expressly allocated to the federal government).  This interpretation is what allows the federal government to criminalize the growing of marijuana for personal use or street level drug offenses.  Somehow, the Supreme Court decided that even though people with health insurance (or without health insurance) may travel in interstate commerce and have to use that insurance in other states, the individual mandate was not authorized by either the Commerce Clause or the Necessary and Proper Clause.  Now, if the Supreme Court had struck down the Affordable Care Act (requiring the average American to purchase health insurance), Congress would have had to turn to an alternative like a single payer system.  So, the Chief Justice wanting to both deliver a victory for the far right (by selectively restricting the scope of the Commerce Clause) without destroying the insurance industry found an alternative justification for the Affordable Care Act — classifying the individual mandate as a tax authorized by Congress’s power to raise taxes.

This solution to a problem that only existed in conservative legal scholarship leads into the 2017 tax bill.  Between 2011 and 2017, Republicans repeatedly failed in their efforts to repeal the Affordable Care Act.  However, the 2017 tax bill set the tax penalty for not having health insurance at $0.00.  And the Republican state attorney generals (more concerned with politics than with actually representing the interests of their states or the people of their states) went to court raising two claims.  First, with the tax now set to zero, the individual mandate was unconstitutional.  Second, as the individual mandate was unconstitutional, the rest of the Affordable Care Act was also unconstitutional.

While the first claim is sort of based on the 2012 decision, it’s not entirely legally correct.  There is a general rule that, without any enforcement provision, a legal mandate is not actually a mandate.  Instead, it is a mere statement of policy.  As such, looked at in this light, the essence of the 2012 holding is that the only constitutional enforcement provision for the individual mandate would be a tax, but that, as a statement of congressional preference (that everyone who can afford to buy health insurance should buy health insurance), the individual mandate is still valid.   Exactly what the court says on this issue does matter in the long-term.  A holding that the individual mandate is now void would mean that a future congress would have to pass the individual mandate in its entirety to reinstate it.  A holding that there is simply no current enforcement provision would only require a future Congress to amend the penalty provision (and hopefully to a level that would actually create a real incentive to buy health insurance).  But, in the short-term, the first claim does not matter.  There is no enforceable individual mandate under current law.

The second claim is the real issue.  There are two legal principles at issue here.  First,  there is a general rule that courts do not interpret legislation to “repeal by implication.”  In other words, if Congress passes a law that repeals one thing, you should not interpret that law as also repealing something else.  Second, there is a general rule that different provisions in the same bill should be viewed as severable.  In plain English, if a bill does X, Y, and Z, a court finding a problem with X should not also invalidate Y and Z.  Both of these ideas are part of the concept of “judicial restraint,” which normally is favored in conservative circles.

In the case of the Affordable Care Act, there are strong arguments that the individual mandate should be viewed as severable.  In 2012, in upholding the individual mandate, the Supreme Court struck down the mandatory part of Medicaid expansion (again creating a novel legal theory inconsistent with 200 years of precedent).  Instead, the Supreme Court left the Medicaid expansion generally intact but made it optional and also left the rest of the Affordable Care Act intact.  So the Supreme Court has already acknowledged that parts of the Affordable Care Act are severable.

More significantly, both repeal by implication and severability ask whether Congress intended to strike down one part of the law and leave the rest of the law intact.  As seen this past term, when Congress changes one provision (and that change is problematic), the Supreme Court will usually leave the rest of the original law intact even if it strikes down that change.  Here, Congress considered and failed to pass bills that would have repealed the rest of the Affordable Care Act.  Instead, it merely changed one provision related to the individual mandate.  As such, Congress has indicated that it only wanted to get rid of that one part and keep the rest of the Affordable Care Act.

The strongest argument that the Republicans have on this issue is prior statements that the Supreme Court and supporters of the Affordable Care Act have made.  Those statements generally cast the individual mandate as a crucial component of the Affordable Care Act as passed in 2009-10.  While those statements are true in the sense that the Affordable Care Act might not fully succeed without the individual mandate, this argument misstates the legal question.  The issue is not what people thought in 2009 about how to craft health care reform.  Instead. the issue is what Congress thought in 2017 when it amended the Affordable Care Act.  And, by only changing the individual mandate, Congress implicitly found that the individual mandate was not needed for the rest of the Affordable Care Act to work in the way that the 2017 Congress wanted the Affordable Care Act to work.

Of course, the Supreme Court has changed since 2012.  Justice Ginsburg is no longer on the Supreme Court; so the 5-4 majority that supported the Affordable Care Act now might be a 5-4 minority (although Justice Kavanaugh did suggest the tax theory when he reviewed the Affordable Care Act on the D.C. Circuit and did join in the majority on the case involving payments to insurers earlier this year).  This case should not be a close call, but changes over the past twenty years have all but eliminated the line between partisan political positions and legal philosophy.

Normally, we would have a better idea how things stand after Tuesday’s arguments.  Typically, the give and take of in-person oral argument gave clear indications of where the justices stood.  With the new sequential questioning (which each justice, in order of seniority, having three or four minutes to question each attorney), it is a lot harder to get a read on the justices.  Sometimes, you can tell that justices aren’t buying a particular argument, but that does not necessarily mean that they will not find for that party on an alternative theory.

I would not expect an opinion on this case before February.   I could easily see very different reasoning from different justices reaching the same result.  If there are serious disagreements about reasoning or about the result, we might not see an opinion until May or June.

I think, ultimately, we are at the same position that we were in 2012.  The moderately conservative justices understand that the alternative to the Affordable Care Act could ultimately be Medicare for All. And, without calling into question Social Security, the Supreme Court could not credibly invalidate a Medicare for All program.    As such, there pro-business side will lead them to protect insurance companies.  And striking down the Affordable Care Act due to Republican legislation could be one of the few things that would motivate Democrats to turn out in large numbers in 2022.  If that happens, Democrats could be the majority in both the House and the Senate in 2023.  And overreach by the Supreme Court might actually make expanding the Supreme Court look appealing to voters in 2022.  (While we might never know for sure, I think that the results in Maine might be due, in part, to Senator Collins getting the opportunity to vote against Justice Barrett and to concern about Democrats pushing for expanding the Supreme Court.   Similarly, if the numbers hold up in North Carolina, the Supreme Court might have made the difference in that race.)