by Tony Wen
The Affordable Care Act, President Obama’s signature legislative accomplishment, has been put through the wringer many times. The healthcare law provides protections for people with pre-existing conditions and expands programs in states for free or low-cost health insurance for low-income citizens through Medicare and Medicaid. Passed in 2010, the sweeping healthcare law has been targeted for repeal by congressional Republicans over 70 times, last failing in 2017. The most controversial part of the law, however, was the creation of a tax known as the “individual mandate” for those who did not have health insurance. The individual mandate requires all individuals, even healthy ones, to enter the insurance market in order to lower costs for others and particularly those who use the most healthcare. However, the mandate is unpopular because it requires many people to pay high costs for insurance that they may never use, thus canceling out the individual benefits of having health insurance to begin with. While simultaneously trying to repeal the law through Congress, the GOP has also turned to the courts.
The initial effort to strike down the ACA, which began in 2010, hinged on a challenge to the individual mandate that failed, as the Supreme Court upheld large sections of the law in NFIB v. Sebelius, in which twenty-six states and the National Federation of Independent Businesses sued the Secretary of Health and Human Services, Kathleen Sebelius. The plaintiffs had three main arguments: the individual mandate exceeded Congress’ enumerated powers under the Commerce Clause, the expansion of Medicaid unconstitutionally coerced states to enact the federal law, and the employer mandate impermissibly interfered with state sovereignty. While the Court decided that the Medicaid expansion requirements were unconstitutional, the final decision was still not favorable for the plaintiffs. The ACA originally allowed the Secretary of Health and Human Services to withdraw all Medicaid funding from a state if it refused to expand Medicaid through the ACA. To fix this, the Court simply stripped that power away from the Secretary while upholding the majority of the Medicaid expansion program—including states’ abilities to expand their programs with reimbursement from the federal government.
Another important change to the ACA can be seen in Chief Justice Roberts’ conclusion that the individual mandate was not a valid exercise of Congress’s power under the Commerce Clause. However, he claimed the mandate is still a valid exercise of Congress’s power to tax those who do not have insurance. In the original text of the ACA, the individual mandate was considered a fine to enforce the requirement for healthcare, but after the Chief Justice’s opinion, it was reformulated into a tax. Since the Court upheld a majority of the ACA in 2012, the act was not seriously reformed or challenged for the remainder of the Obama Administration.
After Donald Trump was elected president and the GOP retained a majority in both the House of Representatives and the Senate, Congress attempted another repeal of the ACA. Senate Republicans were one vote short from fully repealing the law after three Republican senators voted against the measure alongside all Democrats. In response to the defeat, Republicans set their sights on tax reform. In late 2017, President Trump signed into law the Tax Cuts and Jobs Act, which significantly reshaped the U.S. tax code. However, the tax reforms also contained a provision that would subject the Affordable Care Act to constitutional questioning once again. A provision in the law effectively rescinded the individual mandate by reducing the tax for not having health insurance to $0. With the tax eliminated, many Republicans saw another opportunity to overturn the ACA.
With the individual mandate gone, Texas led 19 other states in the 2018 lawsuit in the U.S. District Court for the Northern District of Texas against the Secretary of Health and Human Services Alex Azar. The plaintiffs’ argument solely focused on the constitutionality of the individual mandate, citing Chief Justice Roberts’ 2012 opinion in NFIB. Since Roberts concluded then that the individual mandate was a tax, the plaintiffs argued that because the penalty for not having insurance is now $0, it can no longer be considered a tax, and thus the entire law is unconstitutional. The individual mandate protected the ACA in 2012, but now with it gone, the entire healthcare law is in jeopardy.
The main question in the new lawsuit is whether the entire law is unconstitutional, based on the illegality of individual mandate. The Republican states’ Attorneys General and the Trump Administration have taken the position that the ACA should be overturned entirely because the individual mandate is now not circumscribed under Congress’s power to tax. However, some constitutional scholars do not believe that the ACA can be overturned this way, finding the states’ argument against the ACA unconvincing, citing there was no Congressional intent to repeal the entire healthcare law. And Congress has never been able to collect enough votes to repeal the ACA, which makes the Court’s repealing of the entire healthcare law even harder to justify. Judges should only interpret the law based on what Congress intended, and in this case, Congress never intended to repeal the entire healthcare law. Congress only intended to reduce the individual mandate penalty to $0, which does not give judges the power to repeal the entire law.
Since Congress did not intend to use the Tax Cuts and Jobs Act solely as a means to abolish the Affordable Care Act, the judiciary should not have the authority to invalidate an entire law based on one amendment. A group of law professors expressed similar arguments in a brief filed with the district court, stating “if courts invalidate an entire law merely because Congress eliminates or revises one part, as happened here, that may well inhibit necessary reform of federal legislation in the future by turning it into an ‘all or nothing’ proposition.”
Regardless, District Judge Reed O’Connor ruled in favor of the GOP and declared the entire law unconstitutional. After his ruling, O’Connor faced a wave of bipartisan criticisms, calling his ruling “a naked piece of judicial activism” and “embarrassingly bad.” The Trump Administration refused to defend the case after O’Connor’s ruling, so 17 Democratic states, led by California, filed an appeal to the U.S. Court of Appeals for the Fifth Circuit. In December 2019, the Fifth Circuit issued a 2–1 ruling upholding O’Connor’s decision that the individual mandate is unconstitutional. However, the appellate court decided that with the individual mandate rescinded, the law as a whole was not necessarily unconstitutional. This reasoning falls under the doctrine of severability, stating that if one part of a law is unconstitutional, the rest of the law could still be upheld. The case was remanded and sent back to the District Court, with the Fifth Circuit requesting O’Connor to consider severability, since the individual mandate was not directly tied to other parts of the healthcare law. However, to expedite the process, California petitioned the Supreme Court for certiorari, and the Court agreed. The Court heard arguments for the second week of November 2020, one week after the Presidential Election.
Now, once again, the fate of the Affordable Care Act is again in the hands of the Supreme Court. With Justice Ruth Bader Ginsburg’s passing in September, the ideological balance of the Court has been severely altered. After President Trump and Senate Republicans nominated and confirmed Justice Amy Coney Barrett, the Court now has a 6–3 conservative majority. Although Chief Justice Roberts was the crucial swing vote that upheld the ACA in 2012, if Justice Barrett were to side with the other conservative justices, Chief Justice Roberts’ vote would not be enough to protect the ACA. While Barrett would not hint how she would rule on the issue during her Senate confirmation hearings, she has written an academic article in the past rebuking the 2012 decision, indicating that now-Justice Barrett could vote against the ACA.
During Justice Barrett’s confirmation hearing, Republicans specifically asked about her stances on severability, to which she seemed to agree with the claim that the doctrine could be applied to uphold the ACA, stating that “the presumption is always in favor of severability.” From this response, many proponents of the ACA hope Justice Barrett will be the deciding vote to protect ACA, which gives healthcare to 20,000,000 people in the U.S. and protects millions of people with pre-existing conditions. It is still unclear how exactly she would vote in this particular case or even if Chief Justice Roberts will again decide that the ACA is constitutional.
The Republican plaintiffs are actively pushing for the Court to strike the entire law down. The plaintiffs are asking the justices to be judicial activists, ignoring the doctrines of severability and Congressional intent. The Court has a responsibility to ignore the GOP’s attempts to influence the Court to entirely overturn the ACA. Democrats are hopeful that the Court will at least only strike down the individual mandate and leave the rest of the ACA intact. However, with an unclear indication of how Justice Barrett will vote, the future of the national healthcare system—especially for lower-income Americans and those with pre-existing conditions—hangs in balance. After 10 years of trying to repeal President Obama’s signature healthcare law, the GOP may finally accomplish its main healthcare policy objective through judicial action.
 Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010).
 See e.g., National Federation of Independent Businesses v. Sebelius, 567 U.S. 519 (2012) [hereinafter NFIB v. Sebelius or NFIB], Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), and California v. Texas, No. 19–840 (S. Ct. argued Nov. 10, 2020).
 See Abby Goodnough, Obamacare Returns as Galvanizing Issue After Ginsburg Death and Barrett Nomination, N.Y. Tɪᴍᴇs (Sept. 27, 2020), https://www.nytimes.com/2020/09/27/health/obamacare-supreme-court-barrett-ginsburg.html.
 Chris Riotta, GOP Aims To Kill Obamacare Yet Again After Failing 70 Times, Nᴇᴡsᴡᴇᴇᴋ (July 29, 2017), https://www.newsweek.com/gop-health-care-bill-repeal-and-replace-70-failed-attempts-643832.
 567 U.S. 519 (2012).
 See generally id.
 See generally id.
 See NFIB, 567 U.S. at 554–60 (“In light of the Court’s holding, the Secretary cannot apply § 1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion.”).
 See id. at 538–44 (“The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to ‘regulate Commerce.’”).
 See id. at 546–53.
 Leigh Caldwell, Obamacare Repeal Fails: Three GOP Senators Rebel in 49-51 Vote, NBC Nᴇᴡs (July 28, 2017), https://www.nbcnews.com/politics/congress/senate-gop-effort-repeal-obamacare-fails-n787311.
 Tax Cuts and Jobs Act of 2017, Pub. L. No. 115–97, 131 Stat. 2054 (2017).
 Robert Pear, Without the Insurance Mandate, Health Care’s Future May Be in Doubt, N.Y. Tɪᴍᴇs (Dec. 18, 2017), available at https://www.nytimes.com/2017/12/18/us/politics/tax-cut-obamacare-individual-mandate-repeal.html.
 Texas v. United States, 340 F.Supp.3d 579 (N.D. Tex. 2018) [hereinafter Texas v. United States].
 See e.g. supra, notes 5–10 and accompanying text.
 See Texas v. United States, 340 F.Supp.3d at 596–605.
 See id.
 Julie Rovner, The Future of the Affordable Care Act In a Supreme Court Without Ginsburg, NPR (Sept. 21, 2020), https://www.npr.org/sections/health-shots/2020/09/21/915000375/the-future-of-the-affordable-care-act-in-a-supreme-court-without-ginsburg.
 See Brief for the Respondent at 10, Texas v. United States, 340 F.Supp.3d 579 (N.D. Tex. 2018).
 See Texas v. United States, 340 F.Supp.3d 579 (2018). See also Julie Rovner, Texas Judge Rules Affordable Care Act Unconstitutional, But Supporters Vow To Appeal, NPR (Dec. 14, 2018), https://www.npr.org/sections/health-shots/2018/12/14/677002085/texas-judge-rules-affordable-care-act-unconstitutional-but-supporters-vow-to-app.
 See Devlin Barrett, Legal experts rip judge’s rationale for declaring Obamacare law invalid, Wᴀsʜ. Pᴏsᴛ (Dec. 15, 2018), available at https://www.washingtonpost.com/world/national-security/legal-experts-rip-judges-rationale-for-declaring-obamacare-law-invalid/2018/12/15/9cab3bb8-0088-11e9-83c0-b06139e540e5_story.html.
 See Texas v. United States, 945 F.3d 355 (5th Cir. 2019). See also Sarah Kliff, 17 attorneys general are appealing the court decision overturning Obamacare, Vᴏx (Jan. 3,2019), https://www.vox.com/health-care/2019/1/3/18166912/supreme-court-obamacare-texas-decision.
 See Texas v. United States, 945 F.3d at 402 (“[T]he Supreme Court [has] remanded for ‘lower courts to determine legislative intent in the first instance.’ We do the same here, directing the district court to employ a finer-toothed comb on remand and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate. We do not hold forth on just how fine-toothed that comb should be—the district court may use its best judgment to determine how best to break the ACA down into constituent groupings, segments, or provisions to be analyzed. Nor do we make any comment on whether the district court should take into account the government's new posture on appeal or what the ultimate outcome of the severability analysis should be.”) (citation omitted).
 See Texas v. United States, 945 F.3d at 402.
 Nicolas Fandos, Senate Confirms Barrett, Delivering for Trump and Reshaping the Court, N.Y. Tɪᴍᴇs (Oct. 26, 2020), available at https://www.nytimes.com/2020/10/26/us/politics/senate-confirms-barrett.html.
 See Amy Coney Barrett, Countering the Majoritarian Difficulty, 31 Cᴏɴsᴛ. Cᴏᴍᴍ. 61 (2017).
 Adam Liptak, ‘Severability’ Could Save Health Law, Graham Says and Barrett Seems to Agree, N.Y. Tɪᴍᴇs (Oct. 14, 2020), available at https://www.nytimes.com/2020/10/14/us/amy-barrett-aca-obamacare.html.
 Nina Totenberg, “Supreme Court Appears Likely to Uphold Obamacare”, NPR (Nov. 10, 2020), https://www.npr.org/2020/11/10/933462515/supreme-court-appears-likely-to-uphold-obamacare.