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“After roughly two hours of oral argument in the Supreme Court on Tuesday, it appeared likely that the Affordable Care Act will survive.” In 2012, the Supreme Court upheld the law by adopting the argument that the individual mandate was a tax rather than a command (which would have been unconstitutional). However, in 2017 Congress reduced the penalty to $0; Texas and several other states sued, arguing that with no monetary penalty the mandate can no longer be considered a tax and must be struck down. They further argued that the mandate is integral to the law and that without it the entire law must be struck down. The judges will decide whether the mandate is unconstitutional; if they rule that it is, then they will determine whether it is “severable” from the rest of the law; in other words, whether the entire law must be struck down or just the mandate. SCOTUSblog
Many on both sides oppose striking down the entire law:
“While the challengers may have a credible claim on the legality of the reshaped mandate, their conclusion that the whole law must therefore fall is absurd. The ACA is a sprawling law that includes all sorts of provisions disconnected from the individual mandate, such as its hospital safety regulations and its expansion of Medicaid coverage for Americans near the poverty line…
“Moreover, the private insurance markets the law created, which were thought to require the mandate to function properly when the law passed in 2010, showed themselves durable enough to operate without it, a factor that Congress had at hand as it defanged the mandate in 2017. There is no reason for the court to overrule the judgment of the 2017 Congress, which negated the mandate but kept the rest of the law.”
Editorial Board, Washington Post
“Yes, some justices who dissented in NFIB v. Sebelius and viewed the mandate as unconstitutional did opine that the individual mandate was not severable from the rest of the statute. The dissenting justices reached this conclusion largely based on the Obama administration’s representations in court: The government lawyers had argued that the mandate was indispensable to the broader functioning of the statutory scheme…
“But it’s hard to take the same view now. It’s no longer 2012. And Congress has subsequently amended the statute. Therein lies the rub: By wiping away the penalties for not buying insurance policies but leaving the rest of the statute intact, Congress was implicitly saying that the remaining law was not dependent on the individual mandate to buy insurance being in place.”
James Copland, Manhattan Institute
Other opinions below.