I opined a while ago about which justice wanted to be known as that guy who killed the Affordable Care Act. I further suggested at least one more needed conservative would not hesitate to be that guy; perhaps, I was wrong — again, I will readily admit that it is far better to instill fear than hope. Maybe — just maybe — Kavanaugh is inclined to let the entire law stand based on what he signaled in oral arguments, though one must note comments and questions during oral arguments is not a definitively rendered opinion. It is still all speculation.
But I think Roberts nailed the central argument succinctly by stating, “I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the court to do that, but that’s not our job.” This is at the heart of the matter. Congress tried dozens of times to kill the law in its entirety and failed, and when RepubliKKKlans were able to muster the majority in Congress to kill the law they were only able to change the law by reducing the mandate penalty to zero dollars. In short, they waived any penalty for not complying with the mandate to buy health insurance. It is a “requirement” without consequences which really is no mandate at all. Yet, they left the rest of the law fully intact — on purpose! So, if the conservative justices are the true “textualists” that they claim to be and do not wish to read into the intent of Congress, then every single conservative justice should agree with an opinion that allows the law to stand, notwithstanding any argument about severability because in the end Congress had many, many opportunities to strick down the law but never did so. Thus, the law must remain as is. In fact, I’m not sure why severability is even a consideration in this case. If Congress wants to create or change a law to “mandate” something that has no penalty or even if they wanted to impose a one dollar penalty for not buy health insurance then so what? That is Congress’s prerogative, no matter how feckless the “penalty” is or is not. It is just my opinion as a layman, but I think the argument is rather straightforward. A zero dollar penalty is just that — no penalty and not an indication that the entire law is invalid. Oh, I can’t wait to read the opinions from those justices that argue the entire law is null and void.