We are good friends but make no mistake about it – we come from different backgrounds and have different perspectives on lots of things, including some of the most contentious policy issues of the day. One thing we are unified about, though, is that as women, wives, mothers, policy wonks, fans of the equal protection clause, and people who read www.scotusblog.com for fun, Ruth Bader Ginsberg is one of our personal heroes. Two weeks ago, she was both the first woman and the first Jew to lie in state in the United States Capitol. Remembering that is enough to provoke tears in both of us.
Ginsberg’s lifetime of work towards greater equality affects us every day, including in many ways we don’t even realize, but for which we are always grateful. We know for sure that RBG is the reason why we both had multiple babies while at the same time holding big jobs. Her relationship with her beloved husband Marty, the only boy who seemed to care about her brain, serves as a model for our own marriages. We think of Justice Ginsberg every time we remind people (including sometimes our own children) that there are two, equal parents in this family and we don’t need to manage every crisis or annoying phone call. We try to emulate her when we build and maintain strong relationships based on who people are at their core, not their party affiliation.
Most importantly, we are inspired every day by RBG’s goal for her own life. Just like Justice Ginsberg, we each, “would like to be remembered as someone who used whatever talent she had to do her work to the very best of her ability. And to help repair tears in her society, to make things a little better through the use of whatever ability she has.”
That quote will have to serve as an imperfect segue to the other topic we need to discuss in this post—California v. Texas, which is currently pending before the Supreme Court of the United States (SCOTUS). The latest overall challenge to the Affordable Care Act (ACA) asserts its unconstitutional because it is no longer a valid exercise of Congress’s power of taxation. Court watchers and health policy wonks alike will recall that back in 2012, this was the basis for Chief Justice Roberts’ decision upholding the constitutionality of the ACA. The new argument is that since Congress reduced the tax penalty for failure to comply with the ACA's individual mandate to $0, the individual mandate is now unconstitutional—and, as a result, the entire law should fall. The case is scheduled for 80 minutes of oral argument on November 10, 2020.
The void Justice Ginsberg’s death leaves on the high court, combined with the contentious nature of the law and the upcoming presidential election, has made many people we respect lose their collective minds over California v. Texas. All over the country, people are convinced that the ACA is on the precipice of being completely dismantled, particularly if President Trump’s nominee to replace RBG on the Court, the strict constructionist Judge Amy Coney Barrett is quickly confirmed by the United States Senate.
Quite frankly, we just don’t get it. First of all, we think that this case is the perfect place to employ RBG’s maxim that getting angry and upset is a waste of time and keeps you from what’s truly important. Upfront, we want to acknowledge that it is theoretically possible that California v. Texas will lead to the complete dismantlement of all ten titles of the ACA. If that were to happen, not only would it jeopardize the health insurance coverage status of millions, but it would also end hundreds of non-contentious parts of the law. Things like calorie counts on restaurant menus, the underpinning of most of the last decade’s changes to Medicare, medical student loan programs, and of course, the ever-popular expansion of coverage to adult children to age 26. We also want to acknowledge that we are somewhat going out on a limb here, but feel the need to go on the record and say, we’re not particularly worried any of that is going to happen.
Why are we so calm about this case? (Because let’s be clear, just because we both admire RBG, that does not mean we are always as successful as she in keeping our cool.) Nevertheless, we are even-keeled when it comes to California v. Texas because the facts are on our side. Consider them:
For the record, we think this is the LEAST likely outcome, but it’s certainly possible and would, of course, stop the suit.
By the way, in our humble opinions, this is the most likely end-result result of this case. First, that’s basically what the appellate court decided. It is also what the United States Congress very clearly signaled it wants based on their actions back in 2017. As a reminder, that’s when the completely Republican-controlled Congress elected to just set the individual mandate penalty at $0. Our lawmakers declined at that time to even change any of the provisions of the ACA most closely related to the individual mandate—the law’s guarantee issue requirements for all markets and the individual and small group market’s community rating structure, both of which protect people with preexisting medical conditions. At least one of us has vivid memories of watching Senator John McCain’s infamous thumbs down earlier that summer. In any case, part of SCOTUS’s job is to consider this very legislative intent.
This is also a plausible option in the case, and it just means that California v. Texas is going to drag out for a few more years.
So, what do you think friends? Are the facts on our side? Or will we be eating crow when the SCOTUS finally renders its decision in 2021? Also, if you leave a comment, we’ll reward you with a picture of Jen in the “Dissent” cowl she knit in RBG’s honor and Jessica in her RBG t shirt. Let us know – we LOVE feedback!