Sep 21, 2020 - Health

If Trump replaces Ginsburg, the ACA really is at risk

Illustration of a caduceus with a gavel in the center.

Illustration: Aïda Amer/Axios

The Supreme Court vacancy created by Ruth Bader Ginsburg’s death leaves the Affordable Care Act in much greater jeopardy than it was just a few days ago.

The big picture: Conventional wisdom had held that Chief Justice John Roberts would likely join with the court’s liberals to save the ACA once again. But if President Trump is able to fill Ginsburg’s former seat, Roberts’ vote alone wouldn’t be enough to do the trick, and the law — or big sections of it — is more likely to be struck down.

The backstory: This challenge to the ACA argues that the law’s individual mandate became unconstitutional when Congress nullified it in 2017 — and that the rest of the ACA must fall along with it.

Where it stands: If Trump is able to replace Ginsburg with a stalwart conservative, the risk to the ACA’s core provisions will grow significantly.

  • The court is slated to hear oral arguments the week after the election. If there’s a new conservative justice on the bench by then, the ACA would be in immediate danger.
  • In the absence of a new justice, the court could easily deadlock 4-4. That would leave in place the 5th Circuit Court of Appeals’ ruling, which said the individual mandate is unconstitutional but didn’t decide how much of the rest of the law to strike down along with it.
  • In that event, the case would likely have to work its way back through the process, and perhaps back up to a full-strength Supreme Court. But if the new justice is hostile to the ACA, the threat remains. It’d just be a question of timing.

What we’re watching: Health care is already becoming a centerpiece of Democratic messaging on the court vacancy — including Joe Biden's campaign — and with good reason. When they say the survival of the ACA is at stake in this nomination process, they’re right.

Yes, but: A broad ruling against the entire ACA still requires some logical leaps. Most importantly, it would require the courts to determine that Congress never thought the rest of the ACA could function without the mandate, even though Congress repealed the mandate and left the rest of the law in place.

  • So, if Roberts is indeed inclined not to strike down the whole law, it’s not beyond the realm of possibility that he could bring another conservative justice on board, too — perhaps to strike down the mandate but not the rest of the law.
  • But the conservative wing refused to entertain that more tailored option in 2012, reportedly insisting on striking down the whole law.
  • And if the court tried to find an in-between approach — striking down more than just the mandate, but not the entire law — the first provisions on the chopping block would likely be the most popular: protections for people with pre-existing conditions.

The bottom line: A lawsuit that once seemed like a long shot now has a much more reasonable chance at success — and that means 20 million people’s health coverage really could be in the balance.

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