Congress could kill the lawsuit that threatens to wipe out the Affordable Care Act, legal experts say, but the politics of the issue will almost certainly keep it from doing so.
Three different legal experts offer ideas as to how Congress could make the entire lawsuit moot, if it wanted to:
- Law professor Nicholas Bagley says that Congress could pass a law, signed by the president, stating that it believes the individual mandate is separable from the ACA.
- Legal expert and ACA supporter Tim Jost suggests that Congress could pass a $1 penalty for not having health insurance, essentially recreating its status as a (constitutional) tax.
- Conservative legal expert Jonathan Adler tells me that Congress could just repeal the health insurance requirement entirely.
Yes, but: Doing any of these would require Republicans to act to save the ACA and Democrats to recognize the validity of the lawsuit.
- For now, members are much more content to stick to their talking points and wait for last week's decision to get overturned on appeal.
What won't do anything, at least in a practical sense, is if the House votes to intervene in the case, as incoming Speaker Nancy Pelosi has said she wants to.
- "Courts care what Congress does, not what Congress says," Adler says. "And intervening to defend the law in court is really more Congress talking than Congress doing.”
P.S. HHS issued a statement on the ruling yesterday, confirming that nothing is changing for now: "HHS will continue administering and enforcing all aspects of the ACA as it had before the court issued its decision."
P.P.S. California Attorney General Xavier Becerra made his opening moves to begin challenging the decision last night, focusing first on making sure the status quo remains in place while the legal proceedings play out.