On Tuesday, Nov. 17, the Supreme Court heard oral arguments in California v. Texas, the case on the constitutionality of the individual mandate and the severability of the individual mandate from the rest of the Affordable Care Act (ACA).

Chief Justice John Roberts, who authored two previous opinions upholding the ACA, and Justice Brett Kavanaugh strongly questioned whether the entirety of the ACA must be thrown out due to a 2017 decision by Congress to reduce law’s monetary penalty for not having health insurance to $0, without removing the coverage requirement itself.

The Chief Justice stated, “it’s hard for you to argue that Congress intended for the entire act to fall if the mandate were struck down when the same congress that lowered the penalty to zero did not even try to repeal the rest of the act.” Justice Kavanaugh also noted “this is a very straightforward case for severability under our precedents meaning that we would excise the mandate and leave the rest of the act in place.”

The three liberal justices on the court also echoed support for the severability of the individual mandate.

The case is among the first heard by the new Supreme Court Justice Amy Coney Barrett, who has been critical of the ACA itself, the decision in NFIB v. Sebelius preserving the ACA, and the decision in King v. Burwell to uphold the use of premium tax credits on the federal exchanges.

A ruling that the individual mandate is severable from the rest of the ACA would, in practice, leave the law in place as it is today, even if the mandate is ruled unconstitutional. For more on the potential outcomes of the case, see this analysis by the Kaiser Family Foundation.

NADP will continue to provide updates on the case as they become available, and analysis of the eventual decision in Spring 2021. Provide comments, thoughts or questions to Government Relations Analyst Owen Urech.

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