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Illustration: Aïda Amer/Axios

The Supreme Court will hear oral arguments Tuesday over the future of the Affordable Care Act — the third time in eight years the ACA has been on the brink of life or death at the high court.

The big picture: For now, the smart money says that the court is likely to strike down what remains of the law’s individual mandate, but is unlikely to go along with the argument — advanced by both red states and the Trump administration — that the whole law has to fall along with it.

But that conventional wisdom is based on a lot of guesswork. We’ll get a clearer sense of the justices’ thinking on Tuesday, and the answers to these three questions will give us a better sense of what’s about to happen to 20 million people’s health insurance.

1. Can the mandate survive?

Probably not, but if it can, this case will be easier than almost anyone expects.

  • Red states and the Trump administration argue that because the Supreme Court upheld the mandate as a tax in 2012, it became unconstitutional when Congress zeroed out the tax penalty in 2017.
  • Blue states counter that it still functions as a choice between buying insurance or paying a $0 penalty, and that no one is actually injured by the fact that the coverage requirement is technically still on the books with no penalty to enforce it.

2. Whose intent matters?

If the court strikes down the mandate, then the question turns to “severability” — how much of the rest of the ACA has to fall along with the mandate.

  • Severability is always a question of congressional intent. The courts try to figure out whether Congress still would have passed other provisions without the one the courts are striking down.
  • Texas and the Justice Department argue that the whole law has to go, and to substantiate that case they point to 2010, when Congress passed the individual mandate, and 2012, when the Obama administration defended it in court.
  • On both of those occasions, it’s absolutely true that Democrats believed the mandate was inseparable from protections for people with pre-existing conditions.
  • The blue states' counterargument: If you want to know whether Congress would have kept the rest of the ACA intact without the individual mandate, that's exactly what Congress did in 2017, when it zeroed out the mandate but left the rest of the law intact.

3. Who’s going to save it?

Blue states’ argument is based on the kind of textualist, congressionally focused principles that often work with conservative justices. But for the law to survive, at least two Republican appointees have to cross over and vote with the court’s liberals to save it.

  • Most observers expect Chief Justice John Roberts to be one of them. And there are reasons to believe he might find a second.
  • Earlier this year, Justice Neil Gorsuch raised some eyebrows when his approach to the conservative legal principle of textualism led him to a liberal policy outcome. Also this year, Justices Samuel Alito and Brett Kavanaugh joined Roberts in an important severability decision.
  • And Justice Amy Coney Barrett also mentioned the “presumption of severability” at her confirmation hearings.

Go deeper: How a conservative Supreme Court could save the ACA

Go deeper

Democrats fret about Garland for attorney general

Judge Merrick Garland. Photo: Bill O'Leary/The Washington Post via Getty Images

If Joe Biden picks Merrick Garland to be his attorney general, he could cost his party control of one of the most important judicial appointments in America — and many Democrats do not want the president-elect to take that chance.

How it works: Biden still hasn't named his choice to lead the Justice Department, and if he taps Garland, it would open up his seat on the D.C. Circuit Court of Appeals. If Democrats don’t win both Georgia Senate runoff seats next month, Majority Leader Mitch McConnell would almost surely prevent the president-elect from filling it.

Updated 20 mins ago - Science

Volcanic eruption in Tonga caused "significant" damage

This satellite image of the eruption on Jan. 15 taken by Himawari-8, a Japanese weather satellite operated by Japan Meteorological Agency and released by National Institute of Information and Communications Technology (NICT). Photo: NICT via AP

Significant damage has been reported in Tonga following an undersea volcanic eruption on Saturday, which covered the Pacific nation in ash and cut off communication lines.

Driving the news: The eruption triggered tsunami warnings across Tonga's islands and in other regions, including the West Coast of the U.S. and New Zealand.

Updated 1 hour ago - Politics & Policy

Omicron dashboard

Illustration: Brendan Lynch/Axios

  1. Health: Concerns grow over CDC's isolation guidelines — Experts warn of more COVID-19 variants after Omicron — WHO recommends 2 new treatments — What "mild" really means when it comes to Omicron.
  2. Vaccines: America's vaccination drive runs out of gas— Puerto Rico expands booster shot requirements— Supreme Court blocks Biden's vaccine mandate for large employers.
  3. Politics: Vivek Murthy calls SCOTUS vaccine mandate block "a setback for public health" — Focus group says Biden weak on COVID response, strong on democracy.
  4. Economy: America's labor shortage is bigger than the pandemic— — CDC COVID guidance for cruise ships to be optional starting Saturday — The cost of testing.
  5. States: America struggles to keep schools open — Youngkin ends mandates for masks in schools and COVID vaccinations for state workers.
  6. World: Beijing reports first local Omicron case weeks before Winter Olympics — Teachers in France stage mass walkout over COVID protocols.
  7. Variant tracker