Bloomberg Law
Nov. 13, 2020, 10:46 AM

Obamacare Skirmishes Await Regardless of Supreme Court Ruling

Lydia Wheeler
Lydia Wheeler

The fight over Obamacare will likely continue even if the U.S. Supreme Court upholds the constitutionality of the country’s signature health-care law for a second time.

Despite its newly strengthened conservative majority, the court signaled Nov. 10 it’s inclined to let the Affordable Care Act live on with or without the individual mandate that requires everyone to buy health insurance. That ruling won’t stop opponents from trying to tear down the law, but it could deter another broadside legal attack, some health law scholars say.

“You can’t predict what the future will bring, but the Affordable Care Act has been scrutinized for a decade and so far there really only has been two constitutional issues—Medicaid expansion and the mandate,” said Abbe Gluck, professor of law and the founding faculty director of the Solomon Center for Health Law and Policy at Yale Law School.

“I don’t think we can ever really know what the future will bring, but if they get rid of the mandate that is one more issue that’s gone forever.”

Essential to the Law

The latest challenge to the law was brought by a group of Republican states and two individuals after Congress in 2017 dropped the tax penalty in the individual mandate to $0. The mandate is now an unconstitutional command to buy health insurance, and because Congress never intended the law to function without it, the entire ACA must be struck down, they argued.

If the court takes a scalpel and carves the individual mandate out of Obamacare that’s the end of litigation threatening to wipe out the law, said Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, who supports the litigation challenging the ACA.

If the court rules the mandate can be severed, other provisions that are found to be invalid in the future can then be severed too, he said.

“The mandate challenge is a kill shot to the ACA because of the inseverability clause, because Congress said the mandate is essential to the rest of the law,” Blackman said.

There will be other litigation arising from the ACA, but nothing that challenges its basic constitutionality, said Nicholas Bagley, a professor at the University of Michigan Law School.

He noted there are two petitions pending before the court now challenging the Trump administration’s approvals of state Medicaid programs that require individuals to work in order to remain eligible. Opponents say work requirements effectively undermine the ACA’s efforts to expand Medicaid.

“I can’t tell you that people won’t bring stupid lawsuits against the Affordable Care Act,” Bagley said. “They probably will, but I can tell you that at this point the likelihood that any succeed is extraordinarily dim.”

Health law scholars expect Congress will continue to tweak the ACA, but they doubt any legislative change will give rise to another constitutional challenge.

The case before the Supreme Court now is unique because it was sparked by a congressional change to the individual mandate, which “has these core constitutional questions associated with it,” said Katie Keith, a health law professor at Georgetown University.

“If this court with a clear conservative majority says, ‘Stop bringing us these challenges,’ maybe that’s a sign that hopefully the political opponents of the ACA will heed but who knows,” she said.

Interest in Finality

If the justices decide neither the two individuals nor the Republican states have suffered the required injury to challenge the law and toss out the case, Blackman said the challenge could come right back before the court in a slightly different form.

“I think there is some interest in finality here and the court resolving this issue,” he said.

In National Federation of Independent Business v. Sebelius, the Supreme Court in 2012 upheld the individual mandate as a constitutional exercise of Congress’s taxing power but ruled it was unconstitutional to force states to expand Medicaid by threatening to withhold federal funds for the program. In King v. Burwell in 2015, the court upheld the federal tax subsidies for individuals in states who purchase their insurance on the federal health-care exchange.

In that decision, Chief Justice John Roberts said “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

“If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter,” he wrote.

If the court issues a ruling that’s even stronger than King v. Burwell, there will be a succession of cases where the court “is less politically divided and more legally united in the legal arguments about the statute,” Gluck said.

“If that winds up deterring future challenges and returning the law to the political branches where it belongs, that will be a good thing for everyone,” she said.

To contact the reporter on this story: Lydia Wheeler in Washington at

To contact the editors responsible for this story: Fawn Johnson at; Andrew Childers at