Sign up for our daily briefing

Make your busy days simpler with Axios AM/PM. Catch up on what's new and why it matters in just 5 minutes.

Please enter a valid email.

Please enter a valid email.

Subscription failed
Thank you for subscribing!

Catch up on coronavirus stories and special reports, curated by Mike Allen everyday

Catch up on coronavirus stories and special reports, curated by Mike Allen everyday

Please enter a valid email.

Please enter a valid email.

Subscription failed
Thank you for subscribing!

Denver news in your inbox

Catch up on the most important stories affecting your hometown with Axios Denver

Please enter a valid email.

Please enter a valid email.

Subscription failed
Thank you for subscribing!

Des Moines news in your inbox

Catch up on the most important stories affecting your hometown with Axios Des Moines

Please enter a valid email.

Please enter a valid email.

Subscription failed
Thank you for subscribing!

Minneapolis-St. Paul news in your inbox

Catch up on the most important stories affecting your hometown with Axios Twin Cities

Please enter a valid email.

Please enter a valid email.

Subscription failed
Thank you for subscribing!

Tampa Bay news in your inbox

Catch up on the most important stories affecting your hometown with Axios Tampa Bay

Please enter a valid email.

Please enter a valid email.

Subscription failed
Thank you for subscribing!

Charlotte news in your inbox

Catch up on the most important stories affecting your hometown with Axios Charlotte

Please enter a valid email.

Please enter a valid email.

Subscription failed
Thank you for subscribing!

Please enter a valid email.

Please enter a valid email.

Subscription failed
Thank you for subscribing!

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.

GOP implosion: Trump threats, payback

Spotted last week on a work van in Evansville, Ind. Photo: Sam Owens/The Evansville Courier & Press via Reuters

The GOP is getting torn apart by a spreading revolt against party leaders for failing to stand up for former President Trump and punish his critics.

Why it matters: Republican leaders suffered a nightmarish two months in Washington. Outside the nation’s capital, it's even worse.

Erica Pandey, author of @Work
3 hours ago - Economy & Business

The limits of Biden's plan to cancel student debt

Data: New York Fed Consumer Credit Panel/Equifax; Chart: Axios Visuals

There’s a growing consensus among Americans who want President Biden to cancel student debt — but addressing the ballooning debt burden is much more complicated than it seems.

Why it matters: Student debt is stopping millions of Americans from buying homes, buying cars and starting families. And the crisis is rapidly getting worse.