There is palpable and reasonable fear that no matter what happens in the election or who fills the Supreme Court seat held by Late Justice Ruth Bader Ginsburg, the Affordable Care Act is destined to die at the hands of the nation’s highest court, as a challenge is due to be heard the week after the November election, well in advance of the inauguration of the new president, even if that new president is Joe Biden.
Calm your fears.
An appeals court ruled last year that the individual mandate had become unconstitutional after Trump and the Republicans reduced the penalty to zero through their tax cut legislation in 2017. Republican attorneys general - and the Trump DOJ - are asking the Supreme Court to uphold that decision, and strike down the entire law by finding that part to be unconstitutional. When Chief Justice Roberts joined the Court’s liberals to uphold the mandate, the Court found it to be a proper exercise of Congress’s power to tax. But if no fine is being levied, it is no longer a tax, and the mandate is just a mandate. That’s the argument, anyway.
With Ginsburg’s seat now vacant, the fear is that even if Roberts still votes to uphold the mandate - and it is by no means a certainty that he will - the Court will split 4-4, rendering no judgment, and allowing the lower court decision striking down the mandate to stand.
But all is not lost, and it can all be restored, if, and only if, Joe Biden is elected President and Democrats capture the Senate.
First, it should be noted that the lower court held the individual mandate unconstitutional, but it did not render any judgment on whether that means the entire law should be struck. Although Congress did not specifically state it, courts often apply the principle of severability, meaning even when they find a part of a law unconstitutional, only that part is rendered unenforceable, but the rest of the law stands.
In this case, even if the Supreme Court splits 4-4, the lower court decision on the mandate stands, but since they did not render a decision on the whole law, it would continue to exist.
Not, however, if a third Trump justice is allowed to be seated. Conservatives would have their 5th vote to overturn Obamacare in full, and 100 million people with pre-existing conditions will instantly become uninsurable in the private market.
If a Trump nominee is stopped before the January inauguration and that inauguration swears in a President Biden, however, at the very least, only the striking of the individual mandate would stand.
Why at the very least? Because should Biden be elected, there is every possibility that court reverses its possible deadlock and overrules the lower court.
First of all, history suggests that the Supreme Court has a preference for avoiding deadlocks, which uphold lower court decisions but are not precedential. The Court is not obligated to render judgment right after it hears an argument. Most Supreme Court decisions are handed down in the summer. Roberts, as Chief Justice, can certainly slow down the process of rendering the judgment and drag it into the next presidential term if he wants. It’s possible, even likely, that a new Justice will be seated - in case of a Biden win a new Biden-nominated Justice will be seated - before the Court announces its verdict. In case that pending verdict is a deadlock, the Court can, and is likely to, rehear the case with the new Biden appointee seated. Obamacare is saved.
But even if the Court’s conservatives were somehow able to rush a deadlocked judgment out before the seating of a new Justice, it would still take more than enough time for a Biden appointee to make a difference.
How’s that?
Even though the Supreme Court is often known as the Court of final say, its processes allow for a freshly decided case to be reheard. Rule 44 of the Court provides that a party can ask the Court to rehear the case either on the merits or through a writ of certiorari within 25 days of a judgment being entered.
It is exceedingly unlikely that the Court renders its decision before Christmas for a case heard mid-November, and a decision on such a writ will certainly not be made before the start on the next presidential term, meaning not only that a Biden administration would have the opportunity to ask the Court for a rehearing under Rule 44, but also to seat a Justice before a decision is made on rehearing, and certainly to rehear the case once it is granted.
But this - all of this - depends on us electing Joe Biden, Kamala Harris, and a Democratic Senate. Get to work.