Black Jet Theory – Volume 2020-20 – Justice Ruth Bader Ginsburg and Healthcare

Black Jet Theory – Volume 2020-20 – Justice Ruth Bader Ginsburg and Healthcare

September 25, 2020 by Marshall Snipes

            The coronavirus pandemic, the shutdown of the economy and now the passing of Justice Ruth Bader Ginsburg (RBG) and the politics of her replacement, have taken center stage in the public discourse running up to the election of the next President of the United States in November.  One year ago, it appeared that healthcare reform was to take center stage in the debate of the issues that would decide the next president.  Today is much different.  Lost in the confusion of the last six months and more prominently with the passing of RBG is the importance of the Supreme Court (SCOTUS) docket for this fall.  

            “A little publicized Supreme Court case, California v Texas is set to begin oral arguments November 10^[1] just one week after the election.  “A group of 20 states, led by Texas, sued the federal government in February 2018, seeking to have the entire Affordable Care Act (ACA) struck down.”^[2] These states are represented by 18 Republican attorneys general and 2 Republican governors. After Democratic victories in the 2018 mid-term elections, two of these states, Wisconsin and Maine, withdrew from the case in early 2019, leaving 18 states challenging the ACA on appeal.”^[3]

The 5^th circuit court ruled the individual mandate, a provision of the ACA, unconstitutional but remanded to the trial court the issue of severability.  The Supreme Court then agreed to review all issues.  In the present case the federal government is arguing that “the individual mandate can no longer be construed and upheld as a valid exercise of Congress’ taxing power because Congress eliminated the tax” in December 2017 under the Tax Cuts and Jobs Act.^[4] In National Federation of Independent Business v. Sebelius … “The Court upheld the mandate only by adopting a saving construction of 26 U.S.C. 5000A, characterizing the mandate as the predicate to a tax. But Congress has now eliminated the tax, removing the basis for that construction.”^[5]

The court case is confusing because it first challenges the constitutionality of the individual mandate and second, it challenges the notion of severability.  Severability in law refers to a provision in a piece of legislation which states that if some of the terms are held to be illegal or otherwise unenforceable, the remainder of the legislation shall still apply.^[6]  Therefore, if the individual mandate is determined unconstitutional and is not severable, then the entire Affordable Care Act would be unconstitutional.  

To further complicate matters, the federal government has changed its position during the process.  Initially, the federal government took the position that the individual mandate provision was severable.  Now “the federal government is asking the Supreme Court to prohibit it from enforcing only the ACA provisions that are found to harm the individual plaintiffs”^[7] in other words, inseverable. 

            The death of RBG throws another wrinkle into the conversation.  The drama surrounding naming the replacement of RBG is and will be of epic proportions.  President Trump this week announced that there are enough votes in the Senate to confirm his nominee before the election.  The opposition, Joe Biden, Nancy Pelosi and other Democratic party officials have vowed to do everything in their power to slow the process until after the election.  Regardless, it will be a battle more contentious than Justice Brett Kavanaugh’s confirmation hearings.  RBG was a supporter of the ACA and her replacement is presumably of a different opinion.

            That brings us back to the SCOTUS docket for the fall.  Already a busy docket awaits the eight sitting judges and that’s before any confusion over the election that might impact the docket.  No doubt both sides are preparing legal challenges to the credibility of the election process should they lose. With mail-in ballots and the opportunity for fraud, the Black Jet Theory would suggest that docket delays are on the way.  Determination and certification of the election results will take precedent over other cases on the SCOTUS docket.

In his article, “How will the new Supreme Court vacancy affect the Affordable Care Act’s future?”, Thomas P. Miller outlined the various scenarios regarding the impact of not naming a new judge before the hearing.^[8]  If a new Justice is confirmed before the November 10, 2020 hearing, in theory the conservatives would have a 5-3 advantage with Chief Justice John Roberts the ninth vote considered more moderate than conservative by many legal experts.   In theory, a conservative court would likely uphold the Fifth Circuit decision.  If there was no confirmation before the vote on the case, then if the vote were 4-4 (assuming Roberts votes with the liberals), a tie would not change the lower court ruling and the individual mandate would become unconstitutional.  Then the question becomes is the individual mandate severable or does the unconstitutional determination of the individual mandate nullify the entire Affordable Care Act.  That becomes an even more complicated proposition.

The SCOTUS is not, by constitution, supposed to legislate but instead is supposed to opine on whether a particular law is constitutional.  At times, the court has blurred the lines between legislation and interpretation.  The present case gives the court the opportunity to blur those lines once again.  If the court rules that the ACA is constitutional based on a position in conflict with their prior reasoning, then it would seem the court has ventured into legislating rather than interpreting.  There are plenty of legal “experts” on both sides of both of these issues. Take your pick.

The Black Jet Theory would seem to indicate based on what we know today, that albeit contentious, there will be a ninth justice confirmed this year.  As of this date it seems likely that President Trump’s nominee will be confirmed before the election given Republican control of the Senate. The decision re: California v Texas will probably be postponed due to the contentious issues surrounding the election with or without confirmation of a ninth Justice.  All of these events serve to once again delay any meaningful healthcare reform debate or action.

Don’t take my word for it, think for yourself.

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^[1] Supreme Court of the United States October Term 2020 For the Session Beginning November 2, 2020. https://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalNovember2020.pdf

^[2] Texas v. U.S., No. 4:18-cv-00167-O, Compl. (N.D. Tex. Feb. 26, 2018), https://affordablecareactlitigation.files.wordpress.com/2018/09/177111358274.pdf.

Kaiser Family Foundation. Explaining California v. Texas: A Guide to the Case Challenging the ACA.
https://www.kff.org/report-section/explaining-california-v-texas-a-guide-to-the-case-challenging-the-aca-issue-brief/#endnote_link_481952-6

^[3] In addition, Montana and Ohio filed an amicus brief in the 5^th Circuit and the Supreme Court, arguing that the individual mandate is now unconstitutional but that it should be severed, allowing the rest of the law to survive. Kaiser Family Foundation. Explaining California v. Texas: A Guide to the Case Challenging the ACA.
https://www.kff.org/report-section/explaining-california-v-texas-a-guide-to-the-case-challenging-the-aca-issue-brief/#endnote_link_481952-6

^[4] https://www.supremecourt.gov/DocketPDF/19/19-840/146406/20200625205555069_19-840bsUnitedStates.pdf   

^[5] Ibid

^[6] https://en.wikipedia.org/wiki/Severability

^[7] Kasier Family Foundation. Explaining California v. Texas: A Guide to the Case Challenging the ACA https://www.kff.org/25b60e7/. 

^[8] Miller T. How will the new Supreme Court vacancy affect the Affordable Care Act’s future?  American Enterprise Institute September 22, 2020.    https://www.aei.org/health-care/how-will-the-new-supreme-court-vacancy-affect-the-affordable-care-acts-future/.