Ginsburg’s death injects new doubt into fate of Obamacare

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The death of Justice Ruth Bader Ginsburg injects new uncertainty into the fate of the Affordable Care Act as the landmark health-care law heads to a third showdown before U.S. Supreme Court.

President Donald Trump’s administration is asking the court to declare the law invalid and wipe out its protections for people with pre-existing conditions. The court is scheduled to hear arguments on Nov. 10, a week after the election, and probably will rule in the first half of 2021.

With Ginsburg on the court, the law’s supporters held a strong, perhaps even unbeatable, hand. She was one of five justices, including Chief Justice John Roberts, who remained on the court after voting in 2012 to uphold the core of the law in a case that raised similar issues.

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Her death Friday means defenders of the law will have to pick up a fifth vote from one of the other Republican-appointed justices. That wasn’t lost on Wall Street Monday. Hospitals and health insurers sank and JPMorgan downgraded three hospital stocks, saying Ginsburg’s death raises concerns over how the court may rule in the Obamacare case although rating that risk 'still low.'

“I think you have to say that Affordable Care Act is in a more tenuous position today than it was on Friday morning,” said Nicholas Bagley, a health-care law professor at the University of Michigan Law School. “And you can hold that thought and still think that the likeliest outcome is that this very silly lawsuit will be turned away.”

The law’s supporters have a strong candidate in Justice Brett Kavanaugh, whose past votes and opinions term suggest he would be unlikely to throw out the entire ACA. Justice Samuel Alito’s record also suggests he would be open to upholding the bulk of the law, though he voted to invalidate it in 2012.

Democrats are seeking to make Trump’s stance in the case a pivotal issue in the presidential election. Democratic presidential candidate Joe Biden said Sunday Trump is trying to “strip away the peace of mind from more than 100 million people with pre-existing conditions.”

The law, also known as Obamacare because it was signed by President Barack Obama, brought health insurance to 20 million people. Republicans have tried repeatedly to kill the law since it was enacted in 2010. The court also upheld Obamcare’s crucial tax credits in 2015 in a clash that centered on a glitch in the wording of the statute.

The latest legal fight stems from a provision known as the individual mandate, which originally required people to acquire health insurance or pay a tax penalty.

Writing for the court in 2012, Roberts said that provision was a legitimate use of Congress’s taxing power. A Republican-controlled Congress later joined with Trump to zero-out the tax penalty, leaving the mandate without any practical consequences.

Republican-led states then sued to challenge the law. They argue that, without the tax penalty, Roberts’s rationale for upholding the individual mandate no longer applies. And the Republicans say the mandate is so integral to the law, even without any penalty attached to it, that the court now must strike down the whole thing.

The Trump administration is largely backing that position, while Democratic-run states are leading the defense of the law.

Kavanaugh now could cast the pivotal vote. In other contexts, he has indicated reluctance to throw out an entire statute just because one part is unconstitutional.

“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Kavanaugh wrote in July in a case involving the federal ban on robocalls to mobile phones.

Roberts and Alito joined that opinion, which stripped out an exception for robocalls made to recoup debt owed to or guaranteed by the federal government.

Those three were also in the majority this year when the court resolved a case over the Consumer Financial Protection Bureau by stripping out a provision that shielded the director from being fired by the president. As with the robocall case, the court severed the job-protection provision from the statute that set up the CFPB.

The reasoning in those cases, as well as a law review article Kavanaugh wrote before joining the Supreme Court, suggests the court will leave most of the ACA intact even if it decides the individual mandate is invalid, says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.

“I don’t think there are five votes on the Supreme Court for holding that what’s left of the individual mandate is not severable from the rest of the ACA,” Somin said.

If a successor to Ginsburg hasn’t been confirmed by the argument date, the court in theory could split 4-4. That probably would mean a second argument to let the newest justice take part. The court could also take the preemptive step of rescheduling the argument to help ensure that nine justices can take part.

No matter what the court decides, if Democrats win both the White House and the Senate, they could override the decision with a new law. They could even try to scuttle the case by re-imposing the tax before the court issues its ruling.

And if Trump wins re-election, he will have four more years in the White House to try to kill the ACA.

“Whoever wins the presidential election will have much more to say about the success or failure of the act than the court,” said Theodore Ruger, a health-law expert and dean of the University of Pennsylvania’s Carey Law School. “If it’s Trump, there are many administrative ways he could stifle it.”

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