Dear Dems: Mazel Tov, you did it! Next step: #SaveTheACA. #MootTheSuit.

As I noted right after the November election, along with all the other vitally important things which would change if Jon Ossoff & Rev. Raphael Warnock flipped both Georgia Senate seats is this: It would give Congressional Democrats the opportunity to #MootTheSuit.

The federal lawsuit to strike down the entire Affordable Care Act was heard by the U.S. Supreme Court on Tuesday, November 10th.

As I've written about several times, while the hearing happened on 11/10, the actual decision in the case isn't expected to be announced until sometime this spring (likely April or later).

There's no guarantee that they'll strike it down, even with a 6-3 conservative majority...but if they do, tens of millions of people would lose their healthcare coverage as soon as May 1st, 130 million Americans with pre-existing conditions would lose critical protections, and the entire U.S. healthcare system would be thrown into chaos...in the middle of a global pandemic.

Fortunately, the fact that they aren't expected to issue their ruling until April at the earliest gives Democrats a window of opportunity to render the entire case moot before the decision is announced at all, via one of three paths:

  • 1. Pass a simple bill changing the federal mandate penalty to an amount higher than $0.00.
  • 2. Pass a simple bill clarifying that the mandate is separate from the rest of the ACA.
  • 3. Pass a simple bill striking out the underlying mandate language itself.

University of Michigan law professors Nicholas Bagley & Richard Primus explained these solutions over two years ago, long before the case ever made it to the Supreme Court...but at the time, of course, it was hypothetical since none of these bills had any chance of passing the Senate and would obviously be vetoed by Trump if they somehow did anyway:

Congress could fix the problem by saving, severing, or sinking the mandate. First, Congress could make the mandate constitutional again by raising the penalty for not having insurance from zero dollars, where Congress set it in 2017, to one dollar. Second, Congress could declare the individual mandate severable from all other parts of the ACA. Third, it could repeal the mandate—something that might once have wrecked the ACA but that now would have little or no effect on the rest of the regulatory framework.

The first option—saving the mandate—would undo O’Connor’s complaint against the ACA, which is that the mandate can’t be justified as a tax now that Congress has reduced the “penalty” for not carrying insurance to zero.

...The second option—a statute declaring the mandate severable— would solve the problem by making explicit what should have been clear already: In setting the penalty at zero, Congress indicated that Obamacare can exist without a mechanism coercing people to buy insurance. Making that point explicit shouldn’t be necessary, but it would put a definitive stop to the litigation.

The third approach might be the simplest: Repeal the mandate. Without a penalty attached, the mandate isn’t doing anything anyhow. (Set aside here the debate about whether a mandate with a stiffer penalty might be good policy because, as matters stand, Congress is not going to enact that policy.)

As I understand it, the first option (raising the penalty back over $0.00) could be done with just 50 votes +VP via the reconciliation process, while the second or third of would require the Senate to either get enough GOP support to agree to hit the 60-vote threshold (or to kill the filibuster, which I assume isn't in the cards).

However...you'd have to work quickly. The bill itself could be extremely simple (a single paragraph would suffice), or it could be included as part of a larger bill. Hell, tack it onto the $2,000 COVID-19 direct relief bill if you want...as long as it actually gets passed through both House & Senate and signed into law BEFORE the Supreme Court issues their decision.

If it gets bogged down with other, more complicated, slow-moving legislation and drags out past the point when the SCOTUS issues their ruling, it'll be too late. If the Court saves the ACA, great...but if they strike it down, I'm pretty sure Congress can't pass a law after that decision and make it retroactive.

The critical thing above all else is to make sure that the bill is signed by Presiden Biden before the Supreme Court issues their decision. If that means passing it as a standalone bill, so be it--just make sure it's done, and quickly.