At issue is a complex legal concept known as “severability” — that is, whether a specific provision can be “severed” from a larger law, without overturning the entire thing.
In two recent rulings, Miller notes, the Supreme Court has tended to narrowly focus on “severable” provisions without overturning entire laws, which the court regards primarily as the role of Congress.
So, what is the Supreme Court likely to do with this case? Health policy experts and legal scholars — including Keith, Miller, and Musumeci — suggest four likely scenarios:
No. 1: Case is dismissed. The court could simply reject the suit, ruling that the plaintiffs have no standing to sue, preserving the status quo. “They could say, ‘Get out of court you’re not injured, so you have no reason to be here suing in the first place’ — essentially saying this lawsuit should never have been allowed to move forward in the first place,” Keith says.
No. 2: Kill the individual mandate but keep the Affordable Care Act. The justices could rule the individual mandate is unconstitutional, but it doesn’t mean the rest of Obamacare should be struck down.
No. 3: Kill the mandate and tweak some parts of Obamacare. The court could also decide the individual mandate is unconstitutional and that some, but not all, parts of the law that it is designed to fund — such as protections for people with preexisting conditions — might also be in question. But experts say they don’t expect the justices to go this way.
“You could, in theory, have an outcome where the individual mandate and the preexisting conditions fall and the rest of the law survives,” Musumeci says. “But Roberts and Kavanaugh clearly said they don’t think the 2017 Congress intended to get rid of the preexisting conditions protections. So this tells me they are going to look at the issue in the most narrow way.”
Keith agreed: “From the hearing, that possibility seems a lot less likely than it even was before. I was a lot more concerned about that possibility before the oral arguments.”
No. 4: Overturn all of Obamacare. It’s also possible the court will rule the individual mandate is unconstitutional and therefore the entire Affordable Care Act should be scrapped. But Keith, echoing other experts, says this option is “at the far end of the spectrum” and very unlikely, based on the comments of Roberts, Kavanaugh, and the other justices.