A continuing story of the past decade has been the multiple rounds of litigation involving the Affordable Care Act.  While politicians have been discussing next steps (Medicare for All, Public Option, Repeal & Replace, etc.), businesses and states and other groups have been fighting out particular provisions in the courts.  Between this term and the next, there are three significant cases (or sets of cases to be more accurate) involving particular aspects of the Affordable Care Act.  One — decided this past week — involved the attempt of Congress to cut off the payments to insurance companies by not appropriating the money for those payments.  The second — to be argued in the May teleconference center — is the latest round of the fight over how to cover contraceptives for employees of those who object to contraceptives on moral grounds.  The final — probably to be argued after the election — concerns the impact of reducing the penalty for violating the individual mandate to $0.

When the Affordable Care Act passed, it included a provision intended to make participation in the exchanges less risky for insurance companies during a transition period.  It did this by creating a mechanism for making payments to insurance companies if the premiums that those companies charged were insufficient to cover claims.  This program was funded in part by requiring the insurance companies that overcharged to pay in part of the excess.  However, before the transition period ended, Congress — in its annual appropriations bills — expressly barred any tax dollars from being used to cover these payments.  The issue in the case was whether — due to the mandate in the Affordable Care Act — the government still owed the insurance companies the money promised by the statutory formula notwithstanding the refusal of Congress to appropriate the money.  In an 8-1 decision, the Supreme Court decided that the insurance companies had a legally enforceable claim against the government.  While this decision is a small defeat to the Republican attempt to frustrate the working of the Affordable Care Act, the reasoning in the decision may be useful in the much bigger case to be heard next term.

One part of the argument in the forthcoming case is that, by repealing the penalty on the individual mandate, Congress not only repealed the individual mandate but effectively repealed the entire Affordable Care Act.  Technically, the argument is that the individual mandate is now unconstitutional (because the Supreme Court upheld it under the taxing power and there is no tax now), and that the rest of the Affordable Care Act is not “severable” from the individual mandate.   One of the arguments in the case decided this week was that the language in the appropriations bills barring payments to insurance companies implicitly repealed the mandate for those payments in the Affordable Care Act.    In its discussion of that argument, the Supreme Court noted the general rule that courts rarely find that the language in one act constitutes an implied repeal of a different statute.  Under this rule, unless the two acts are so contradictory that one must prevail over the other, courts will find ways to give effect to both laws.

Now, of course, the eight justices who joined in this language could theoretically change their minds next term.  But assuming consistency, even assuming that Congress understood that repealing the tax penalty for the individual mandate would nullify the individual mandate, Congress did not repeal the remainder of the Affordable Care Act.  While, at the time of the original passage of the Affordable Care Act, there is room for speculation about what Congress would have done if it knew that there was no individual mandate, it is clear that the last Congress opted to leave the rest of the Affordable Care Act intact while neutering the individual mandate.  As such, assuming that the Supreme Court does not decide against reaching the severability question, it should be clear that the rest of the Affordable Care Act is still a valid and enforceable law.

Of course, the easy solution is to elect a Democratic President, a Democratic House, and a Democratic Senate to restore (and enhance) the penalty provisions for the individual mandate (as well as other beneficial adjustments to the Affordable Care Act).  But until such changes can be enacted, this week’s decision is a good omen on maintaining the status quo.