2022 Update
The updates below from 2012 to 2021 covered proceedings at the Supreme Court that were initiated various States and other entities to challenge portions of the Affordable Care Act. As of 2022, the only portion of the Affordable Care Act that has changed significantly is the removal of the individual mandate.
2021 Update
Katie Keith at Health Affairs reported:
“On June 17, 2021, the Supreme Court issued its highly anticipated decision in California v. Texas. The Court, by a vote of 7-2, turned back a challenge to the Affordable Care Act (ACA), concluding that the plaintiffs did not have standing to challenge the constitutionality of the now penalty-less individual mandate. The decision was written by Justice Breyer while Justices Alito and Gorsuch dissented.
2020 Update
As David Gans from the Constitutional Accountability Center said in a November 2020 update,
Earlier this week, the Supreme Court heard oral argument in California v. Texas, the latest attempt in the long-running effort by conservatives to strike down the entire Affordable Care Act. The two hours of questioning suggest that the Supreme Court is unlikely to take this radical step. Both Chief Justice Roberts and Justice Brett Kavanaugh—who together with the Court’s three more liberal Justices could form a majority—repeatedly stated that it would be inappropriate to strike down the statute as a whole. No other Justice offered any real rejoinder to their statements recognizing that the court’s role should be to salvage, not destroy, Congress’s handiwork. A straightforward application of precedent, Chief Justice Roberts and Justice Kavanaugh stressed, points decisively in favor of saving the Affordable Care Act. The Roberts Court is deeply conservative, but, at least for now, it seems unwilling to upend settled legal principles to strike down the ACA.
The linchpin of the latest attack on the Affordable Care Act is a radical revision of the doctrine of severability. Severability is the legal principle that when a court finds a particular provision of a law unconstitutional, it should save, not destroy, the remainder of the statute. The basic idea behind severability doctrine is that courts should not gratuitously invalidate constitutional parts of a law. In California v. Texas, that is precisely what the plaintiffs are seeking…”
“…The Court’s other conservative Justices offered little in the way of pushback. None of the Court’s most conservative Justices offered any reason why the Court should reach out to invalidate the entire ACA. Indeed, even Justice Samuel Alito, who voted to invalidate the entire ACA in National Federation of Independent Business v. Sebelius, observed that it did not appear that the individual mandate was integral to the rest of the ACA. As he put it, in an airplane construction metaphor, “the part has been taken out and the plane has not crashed.” The silence of the Court’s most conservative Justices underscored just how weak the plaintiffs’ case in California v. Texas is.
The severability question in California v. Texas is an easy one. Fortunately, a majority of the justices seemed to recognize that. The Supreme Court should, once again, reject the efforts of conservatives to strike down the ACA…”
2012 Update
Today’s hearing at the Supreme Court began with a Court-appointed amicus curiae from attorney Robert Long. An amicus curiae or friend of the court
brief focused on whether the Court may leave PPACA in effect even if it determines that requiring all Americans to purchase health insurance or pay a penalty is unconstitutional. This is referred to as leaving (or severing) the rest of PPACA from the provision that is being litigated. Second, the amicus curiae brief dealt with whether the Court may compel States to either comply with PPACA or lose Medicaid funding.
At the conclusion of today’s hearing Chief Justice Roberts stated, Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. You have ably carried out that responsibility, for which the Court is grateful.
Briefs have been submitted by organizations favoring reversal of PPACA on the severability issue, including:
- America’s Health Insurance Plans (AHIP) and the Blue Cross Blue Shield Association,
- U.S. Chamber of Commerce, and the
- American Center for Law and Justice
Other organizations submitted briefs supporting severability, in other words the idea that the the Supreme Court strikes down the individual mandate that the rest of PPACA remains intact. These include the Missouri Attorney General and the AARP.
