The Supreme Court Appears Unlikely To Strike Down Obamacare—Again

"A lot of justices may really be looking at saying how non-essential an argument or a decision would be from the court to say the entire act is unconstitutional when politically nobody really wants that outcome," says Hodge. "Against a backdrop of COVID-19, a pandemic during which 20 million Americans would lose their health insurance in a blip if that's what the court decided, I think the court is going to put all that into perspective and clearly come out with a decision that's just allowing the ACA to remain intact until Congress somewhere down the road actually passes some repeal measure, which it did not do during the Trump administration."

In fact, House Republicans attempted (and failed) to repeal Obamacare more than 70 times; the law has been upheld by the Supreme Court twice before; and recent polls suggest the law is more popular than ever among the American public.

Here's what you need to know about the Affordable Care Act Supreme Court challenge

1. What is this case about?

In 2017, the Trump administration pushed to pass the Tax Cuts and Job Act, which repealed the controversial individual mandate that required most Americans to get health insurance and to pay a fine if they didn't. In California v. Texas, jurisdictions like Texas, Arizona, Florida, and Georgia argue that the entire Affordable Care Act is unconstitutional because it cannot be legally separated from the now-repealed individual mandate provision.

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2. What's likely to happen?

Based on how the oral arguments went on Tuesday, it appears that the Affordable Care Act will remain intact, according to legal scholars.

"The court severely challenged all the parties to explain why the court should be asked to declare the entire Affordable Care Act unconstitutional because one provision, the individual mandate, couldn't be severed from it," says Hodge. "Even the most conservative justices, Kavanaugh and others, were basically saying that would go against all Supreme Court precedent for this court to do that. As a result, I think what you're looking at here is a decision where even if the court said, yes, the individual mandate is now unconstitutional, [the ACA] remains in force and in effect."

"The consistent questions back to legal counsel, were suggesting that this court—no court, can go so far as to tell Congress that your entire 2000 page act is invalidated because of one provision that has been, potentially, rendered unconstitutional," says Hodge.

3. What if the justices do a 180 and rule the Affordable Care Act unconstitutional?

Although Hodge says it appears that the Supreme Court is likely to uphold Obamacare, anything is possible. It's likely that the decision won't come before President Donald Trump finishes his term, leaving the aftermath of this ruling to the Biden administration and Congress.

"Congress can fix this, no matter what the court," says Hodge. "It can fix it with one line of legislation. And that one line of legislation would be to say, we now impose a new penalty for the individual mandate." Because the case is built upon the 2017 Tax Cuts and Job Act, if Congress revives the individual mandate, the basis of California v. Texas no longer exists so the decision would go along with it. "Under Supreme Court precedent, if it does that, the mandate would be basically back intact and everything the court said would be completely overturned as well."

However, there could be some political barriers to prevent this from happening so easily. "The dilemma, of course, is even in President-elect Joe Biden's administration," says Hodge, "absent a unified House and Senate, it's going to be tough to push even one line of legislation through the Senate." But it could also go smoothly.

"Even if the court invalidated the Affordable Care Act, don't count it out. The American public has already resoundingly found the benefits from the ACA, completely outweighed in so many different ways, whatever downturn it saw, for economic or other purposes," says Hodge. "I think there may be a political push even that the more Republican-oriented Senate can't deny that saving the ACA, you know, six months from now, because of a single piece of federal congressional legislation might actually be what Congress has to do."

4. When will we know the court's decision?

Hodge says it'll be months before we hear a decision in this case. The Supreme Court first has to internally assess the case, deciding the standing and severability of the constitutionality of the individual mandate and how that impacts the constitutionality of the entire act.

"That [process] will not be available to the public, you will not know until the court has reached a decision, issued an opinion as to what specific justices voted in favor of which issues," says Hodge. "However, the court may issue that opinion in an expedited way. We might not see it until late in 2021, we might see it a lot sooner if, for example, the court determines initially that these parties don't even have the standing to bring these claims." If the court makes that decision, there's nothing left for them to do. "I predict, though, the court heard the case because very clearly it sees that these parties do have standing and it's going to issue an opinion that's going to take months for us to see it."