As most surely know, Trump and the Republicans have filed their initial brief before the Supreme Court seeking to overturn the entire ACA, arguing that the elimination of any tax penalty to enforce the individual mandate renders the original constitutional justification (Congress’s taxing authority) a nullity and that — under something called the “severability doctrine” — the entire statute should fall because its other provisions are too intertwined with the (now) unconstitutional individual mandate. (← Phew, that is a bit of a rough summary).
Let me say upfront: 1. I think the Trump/Republicans’ argument is deeply wrong. 2. I predict that Trump/Republicans will lose this argument.
I write though not to debate the merits but because I think it is important to guard against overconfidence — and I can’t figure out why, in practical terms, most pundits are treating this latest Republican attack as a frivolous appeal, even a substantive “absurdity.”
Why? Because the Republicans’ exact, precise argument made today was already adopted, and set forth in over 15 pages of the dissent, by Justices Scalia, Kennedy, Thomas and Alito in the original Sebelius decision. How can we be dismissive and overconfident about a theory that already came within one vote (J. Roberts) of prevailing at the Supreme Court?
Now, Scalia and Kennedy have been replaced by Gorsuch and Kavanaugh. Does that give you comfort? And the fifth deciding vote — J. Roberts? Well, in the majority Sebelius decision . . . Roberts expressly declined to address this precise severability question because he had found the individual mandate to be constitutional based on Congress’s taxing authority (now under practical challenge).
So, my point is that I don't see a basis for overconfidence, and want to make sure that we are prepared. On that score, I note that most prognosticators thought that the original Sebelius Supreme Court challenge to the ACA was very weak and unfounded — and yet the ACA survived only with the defection of Chief Justice Roberts. I mean, in all candor, this landmark bill was almost defeated by the ludicrous, Fox News “broccoli” argument — which Obama’s Solicitor General seemed completely unprepared for, despite months of right-wing signaling of the argument. Again . . . overconfidence.
In real-politik terms, I predict that Roberts will be the 5th vote to uphold the ACA on this latest challenge, if for no other reason than that his Sebelius opinion is already his “profile-in-courage” legacy moment, and he is not going to throw it away on this wrong, odd-ball challenge. But can I predict that Gorsuch and Kavanaugh will have the courage to associate their names to “upholding Obamacare”? That they will find the already expressed views of Scalia, Kennedy, Thomas and Alito to be wrong? …. No.
The fact is that we may be facing another 5-4 squeaker.