Brett Kavanaugh Just Agreed The Whole ACA Needn't Be Scrapped

[bigtree]

Brian Beutler @brianbeutler
Brett Kavanaugh just said he agrees that IF the mandate without tax penalty is unconstitutional, then it should be severed. So this case is over.

Steve Vladeck @steve_vladeck ·8m
This is the most important line that any Justice could've said at this morning's #ACA argument.

If Justice Kavanaugh believes that the individual mandate is "severable" from the rest of the statute, then there's no way to count to five votes to throw out the *entire* law.

Link to tweet

[Hoyt]

1. I'm betting that is exactly what happens. The ACA will remain intact except for the mandate.

[exboyfil]

2. The problem is you can't have a healthcare system

without some sort of mandate to prevent free riders. Everybody has to be in the pool or it doesn't work.

Or you get Draconian and reinstitute preexisting conditions. The only difference being if you current health plan goes away for some reason, then the insurance company is obligated to take you on a new plan.

[Proud Liberal Dem]

6. This will probably need to be addressed

but at least it sounds like an easier problem to fix than wholesale destruction of the ACA.

[Orangepeel]

10. the penalty is already 0 and it didn't collapse

[still_one]

3. Bloomberg just reported that it seemed that Roberts and Kavanaugh seemed hesitant about

voiding the ACA

[Proud Liberal Dem]

4. Holy cow!

This is some good news!

[ananda]

5. Without the mandate.. not really.

The law is toothless without the mandate.

[NutmegYankee]

7. It's already $0. Not much impact.

[Proud Liberal Dem]

8. But an easier issue to fix

than blowing up the entire law, right?

Once we have a majority, we can push an appropriate fix via reconciliation, right?

[BComplex]

12. Yes. We need the majority in the Senate to fix some problems.

So let's send Stacy Abrams some $$$LOVE$$$

[still_one]

14. It would make it almost a certainty with that, but I think there are at least 3 republicans in the

Senate who might work with the Democrats on this, and if McConnell refuses to bring anything to the floor, repercussions for his party may be felt in 2022 because of that

I think trump is the major obstacle, and with him gone, that won’t be over hanging the hesitancy of some republicans

[Blasphemer]

9. Exactly. It's time for Dems to realize that Medicare for All is the only viable option

It is bullet-proof re: the U.S.S.C. I say this as someone who is generally a pragmatist and not a Bernie Bro type. I followed the ACA debates very closely. I was optimistic about the public option and expanded Medicare plan that Lieberman and Baucus derailed. It's clear now that the only way forward is to go all in.

[area51]

15. +1 n/t

[NutmegYankee]

11. To be honest, this is the way the precedent's work.

For instance the Section 230 protections on websites were part of the Communications Decency Act (CDA) of 1996, much of which got tossed as unconstitutional. Section 230 remains law, while other parts of the act are not law.

[MontanaFarmer]

13. The law is actually functioning fairly well without the mandate in effect.

Kavanaugh has signaled this in prior cases, as noted in the OP. He's favored the principle of unconstitutional (in his judgment) parts of laws being severable from the rest of the law. This case is ridiculous, there's no way it should have even been heard, and I'd be shocked if they invalidated the entire law. The really silly part is there may be 4 votes in favor of invalidating the law based on this bullshit argument. I suspect Roberts votes to uphold the law as written, that the mandate is constitutional as an exercise of taxing power (he already said this of course), Kavanaugh concurs in upholding the law but states the mandate is unconstitutional, and my other bet is that Clarence Thomas is an idiot.

[bigtree]

16. kick

Last edited Tue Nov 10, 2020, 02:00 PM - Edit history (1)

Link to tweet