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Illustration: Annelise Capossela/Axios

Even a solidly conservative Supreme Court could find a pretty easy path to preserve most of the Affordable Care Act — if it wants to.

The big picture: It’s too early to make any predictions about what the court will do, and no ACA lawsuit is ever entirely about the law. They have all been colored by the bitter political battles surrounding the ACA.

  • Even so, a handful of factors — the specifics of this case, the court’s recent precedents, even a few threads from Amy Coney Barrett’s Supreme Court confirmation hearings — can at least help draw a roadmap for a conservative ruling that would leave most of the ACA intact.

How it works: There are two steps to the current ACA case. First, the justices will have to decide whether the law’s individual mandate has become unconstitutional. If it has, they’ll then have to decide how many other provisions have to fall along with it.

  • The real action is in the second step — whether the mandate is “severable” from the rest of the law.

“If you picture severability being like a Jenga game — it’s kind of, if you pull one out, can you pull it out while it all stands? Or if you pull two out, will it still stand?” Barrett explained during Wednesday’s questioning.

  • “The presumption is always in favor of severability,” she said.

Severability is a question of congressional intent — whether Congress still would have passed the rest of a law if it knew it couldn’t have the piece the courts are striking down. And conservative judges make a point of relying only on a law’s text when determining congressional intent.

  • That should make the current case easy, the blue states defending the ACA argue: Congress zeroed out the mandate and left the rest of the law intact — a pretty clear sign that it intended for the rest of the law to operate in the absence of the mandate.
  • “It is abundantly clear that Congress wanted to keep the hundreds of other ACA provisions ... without an enforceable minimum coverage provision, because that is the scheme Congress created,” Democratic attorneys general said in a brief.

The other side: The red states challenging the law, on the other hand, get further away from straight textualism.

  • They say the courts should instead look to Congress’ initial belief, when it passed the ACA in 2010, that the mandate was inextricably tied to protections for pre-existing conditions.

What we’re watching: Barrett acknowledged in this week’s hearings that the law has changed since it was first passed — a potentially encouraging sign, if you’re an ACA defender hoping the conservative justices will look at legislative text Congress wrote in 2017 instead of expert statements from 2010.

  • “Congress has amended the statute since" the 2012 Supreme Court ruling upholding the ACA, Barrett said Wednesday. “It has zeroed out the mandate, so now California v. Texas involves a different provision.”

A case from earlier this year — tied to another big-ticket Obama policy — might also help illuminate the current court’s approach to severability.

  • The court’s conservative majority ruled in June that the leadership structure of the Consumer Financial Protection Bureau was unconstitutional.
  • But a combination of four liberals and three conservatives then held that the whole agency didn’t have to be struck down because of it.

Yes, but: None of this means that the threat to the entire ACA, or to its protections for people with pre-existing conditions, has been exaggerated.

  • The Republican attorneys general who brought the case are asking the court to invalidate the entire statute. So is the Justice Department.
  • A federal judge ruled that the entire law had to fall. An appeals court couldn’t decide how much to strike, but said it would probably need to be more than just the mandate — and protections for pre-existing conditions would be next in line.

The bottom line: The ACA’s allies may not be able to save the remains of the individual mandate, but that’s a loss they can live with. And there is at least a clear path to a ruling, even from a conservative court, that would leave the rest of the law intact.

Go deeper

Dec 17, 2020 - Sports

Knives out for the NCAA

The U.S. Supreme Court Building. Photo: Robert Alexander/Getty Images

The NCAA's strict limits on college athletes' compensation get less tenable every day.

Driving the news: The Supreme Court has agreed to hear a case challenging the NCAA's ban on certain education-related benefits, like laptops and scholarships for graduate school.

3 hours ago - Sports

Gonzaga University revokes NBA great John Stockton's tickets over mask stance

Former Utah Jazz player John Stockton during a 2017 press conference in Salt Lake City. Photo: Melissa Majchrzak/NBAE via Getty Images

Gonzaga University suspended the season tickets of notable alumni John Stockton after the NBA Hall of Famer failed to comply with the school's basketball games mask mandate, the Spokesman-Review first reported.

Driving the news: "Basically, it came down to, they were asking me to wear a mask to the games and being a public figure, someone a little bit more visible, I stuck out in the crowd a little bit," the former Utah Jazz point guard told the outlet in an interview Saturday.

Updated 4 hours ago - World

State Department orders evacuation of U.S. diplomats' families from Ukraine

From left, undersecretary for political affairs Victoria Nuland, Secretary of State Antony Blinken and U.S. chargés d'affaires in Ukraine Kristina Kvien during a meeting with Ukrainian Prime Minister Denys Shmyhal in Kyiv. Photo: Yevhen Liubimov/ Ukrinform/Barcroft Media via Getty Images

The State Department will begin evacuating families and nonessential staff from the U.S. Embassy in Kyiv this week, according to a travel advisory published Sunday evening.

Why it matters: The move underscores U.S. fears that a Russian invasion could destabilize Ukraine and threaten the embassy's ability to assist Americans.