The Trump administration's new legal argument against the Affordable Care Act is a political risk. It may also be a liability in court.
How it works: The legal issue here is "severability" — if the ACA's individual mandate is unconstitutional, can it be struck down in isolation? Or is it too intertwined with other parts of the law?
Flashback: We've seen this movie before — in 2012, at the Supreme Court.
- According to behind-the-scenes reporting from the 2012 ACA case, four conservative justices wanted to strike down the entire law. Chief Justice John Roberts reportedly wanted to strike down the mandate and protections for pre-existing conditions while leaving the rest intact.
- But the other conservatives wouldn't budge, and faced with a choice between upholding or striking down the whole thing, Roberts chose the former.
The Justice Department has now forced that same all-or-nothing decision into the case now pending before the 5th Circuit Court of Appeals.
"There's no way they were getting Roberts' vote anyway … but this won't help," said Jonathan Adler, a law professor at Case Western Reserve University who helped spearhead a different challenge to the ACA.
- "It's contrary to everything he’s ever said and done on severability," Adler argues.
It may not get that far. "I think the states ultimately lose," Adler said. "I think the most likely outcome is they lose in the 5th Circuit. If they don't lose at the 5th Circuit, they will lose at the Supreme Court."
If that's what happens, adopting this riskier legal strategy may ultimately be the only thing that saves Republicans from the political nightmare of wiping out 20 million people's health care coverage with no strategy on how to replace it.
- I'll spare you a long list of quotes from President Trump's trip to Capitol Hill yesterday. Suffice it to say that no, Republicans still do not have a plan for what happens next if they finally succeed in killing the ACA. Some things never change.