There are three legal issues to be considered by the Supreme Court during oral argument today:
- Have the plaintiffs alleged enough of a genuine injury tied to the now toothless individual mandate to establish standing to sue?
- Is what remains of the individual mandate constitutional, in light of the previous (ridiculous) decision finding it valid only as a tax?
- If the mandate is unconstitutional, would the intent of Congress be to sever it from the rest of the legislation, or should the entirety of ACA fall?
The simplest way of dealing with the case is to find that the plaintiffs lack standing, as the mandate is now meaningless; doing so would be an exercise of the judicial restraint so allegedly beloved by conservatives. If that is done, it becomes unnecessary to address the other issues. If the Court finds that the plaintiffs do, in fact, have standing, however, it is a foregone conclusion that the mandate will fall. The issue that will get the most attention, consequently, will be #3.
There is no doubt that the original framers of ACA thought that the individual mandate was one of the cornerstones of the legislation. There is also no doubt that the Congress that deleted the penalty for violating the mandate felt otherwise. The lower court in this case based its decision on the original legislative intent and blew off everything that happened after that. Even most right-wing legal commentators believe that was an obvious error.
As I noted in my last post, the GOP members of the Judiciary Committee have given the Court a permission slip to uphold ACA. I believe a clear majority, including Barrett, will do so. The legally principled and politically sensible way to do that would be to find a lack of standing and avoid the severability issue. Whether that will happen, I do not know; the unabashed GOP partisans on the Court are probably spoiling for a fight on the merits.