Comply With Us

Supreme Update—A Few Words on RBG and California v. Texas

October 6, 2020

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 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:

  1. SCOTUS is about to consider an appeal to the ruling of the United States Court of Appeals for the 5th Circuit.  The appellate court partially upheld a lower court ruling in the case of Texas v. United States. Those judges found the individual mandate provisions of the ACA unconstitutional. However, rather than striking down the entire law like U.S. District Court Judge Reed O’Connor did last year, the 5th Circuit remanded part of the original ruling back to the District Court.
  1. Questions on the Supreme Court’s agenda include:
  • If the challengers to the ACA have a legal right to sue at all. 
  • If the individual mandate is unconstitutional given that the penalty for not complying is now $0. 
  • If the mandate is invalid, then can it be separated from the rest of the ACA, or should the entire law be struck down. 
  1. If SCOTUS rules that Texas and the other states challenging the ACA do not have standing, then the whole controversy is moot and the ACA stands.
  1. If SCOTUS rules that the individual mandate is constitutional, the law stands. 

For the record, we think this is the LEAST likely outcome, but it’s certainly possible and would, of course, stop the suit.

  1. If SCOTUS rules the individual mandate is unconstitutional but severable from the ACA as a whole, then the current health insurance marketplace status quo stands. Nothing effectively changes here, because the individual mandate penalty is $0, so, what’s really the difference?

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.

  1. If there is a 4-4 tie in the Court decision, because Justice Barrett (or another nominee) is not confirmed in time to hear the oral arguments in the case, then the Appellate Court’s decision stands.  Remember, the 5th Circuit only struck down the individual mandate and told the original District Judge to go back and sever the individual mandate and any other provisions he felt were inherently linked to the mandate—not the whole law.  If this happens, whatever Judge O’Connor decides must be severed can also be appealed. 

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.

  1. If SCOTUS gets to the question of severability, there is a reasonable chance the Court will find most of the ACA can stand without the individual mandate.  The Court’s Republican appointees have a long history of applying the principle of severability when it comes to other major laws that contain a few dicey provisions. Just this past June, the GOP-appointed majority of the Court voted 5-4 to sever parts of Dodd-Frank in Seila Law LLC v. Consumer Financial Protection Bureau.  Also, earlier this summer, in a majority opinion written by Justice Kavanaugh, SCOTUS voted 6-3 in Barr v. American Assn. of Political Consultants, Inc. to deem part of the Telephone Consumer Protection Act unconstitutional—but did not strike down the entire law. To quote Chief Justice Roberts severability is “a scalpel rather than a bulldozer.”
  1. It might not even be close.  Despite all of the hype about division on the court, most Supreme Court decisions are actually decided amicably.  A 9-0 decision is the most common vote—clocking in at 36% of all decisions. 8-1 and 7-2 decisions account for 15% more of their decisions.  5-4 decisions represent only about 9% of SCOTUS votes.

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!