Increased ACA uncertainty at the U.S. Supreme Court upon death of RBG

• Conventional wisdom held that the Supreme Court’s hearing of Texas vs. Azar, challenging the ACA’s individual mandate, on November 10 would lead to a similar outcome as prior challenges.
• Many believed Chief Justice John Roberts would join with court’s justices appointed by democratic presidents to preserve the law.
• The passing of Justice Ruth Bader Ginsburg on Sept. 18 has altered the balance of the court, increasing the risk of a ruling that will alter the ACA.

Conventional wisdom held that the Supreme Court’s hearing of Texas vs. Azar, challenging the ACA’s individual mandate, on November 10 would lead to a similar outcome as prior challenges. Chief Justice John Roberts would join with court’s justices appointed by democratic presidents to preserve the law.

However, the passing of Justice Ruth Bader Ginsburg on Sept. 18 has altered the balance of the court, increasing the risk of a ruling that will alter the ACA. If the Court rules in favor of Texas, the range of outcomes varies, based on the majority’s decision related to the “severability” of the individual mandate provision. The range of outcomes varies from eliminating the individual mandate but preserving the remainder of the law (least impact given the penalty is currently $0), to overturning the individual mandate and the related insurance market reforms, to overturning the entire law.

The court historically has taken a narrow view on severability, seeking to preserve as much of a law as possible when one provision is found unconstitutional. Therefore, most legal experts doubt the court, even with its new makeup, will overturn the entirety of the ACA.

President Trump has stated his intention to nominate a candidate to fill the vacancy left by Justice Ginsburg. And Senate Majority Leader McConnell has indicated that the Senate will vote on the president’s nominee.

However, it is likely the ACA case will be heard with only eight justices. Using the current sitting justices as a sample, the length of the confirmation process varies significantly. But in general, it takes a least two months to confirm and seat a justice. For example, Justice Gorsuch’s confirmation process consumed 69 days from when he was nominated by President Trump to when was confirmed and took his seat on the court. Based on that time frame, if President Trump announces a nominee this week and the confirmation process is uncontroversial, which is unlikely given the timing, the earliest a new justice would be able to take their place on the court would be late November/early December.