The Trump administration’s new legal argument against the Affordable Care Act is a political risk. It may also be a liability in court.
How it works: The legal issue here is “severability” — if the ACA’s individual mandate is unconstitutional, can it be struck down in isolation? Or is it too intertwined with other parts of the law?
Flashback: We’ve seen this movie before — in 2012, at the Supreme Court.
The Justice Department has now forced that same all-or-nothing decision into the case now pending before the 5th Circuit Court of Appeals.
“There’s no way they were getting Roberts’ vote anyway … but this won’t help,” said Jonathan Adler, a law professor at Case Western Reserve University who helped spearhead a different challenge to the ACA.
It may not get that far. “I think the states ultimately lose,” Adler said. “I think the most likely outcome is they lose in the 5th Circuit. If they don’t lose at the 5th Circuit, they will lose at the Supreme Court.”
If that’s what happens, adopting this riskier legal strategy may ultimately be the only thing that saves Republicans from the political nightmare of wiping out 20 million people’s health care coverage with no strategy on how to replace it.