Show an ad over header. AMP

The 3 questions that will determine the ACA's fate

The Supreme Court will hear oral arguments Tuesday over the future of the Affordable Care Act — the third time in eight years the ACA has been on the brink of life or death at the high court.

The big picture: For now, the smart money says that the court is likely to strike down what remains of the law’s individual mandate, but is unlikely to go along with the argument — advanced by both red states and the Trump administration — that the whole law has to fall along with it.


But that conventional wisdom is based on a lot of guesswork. We’ll get a clearer sense of the justices’ thinking on Tuesday, and the answers to these three questions will give us a better sense of what’s about to happen to 20 million people’s health insurance.

1. Can the mandate survive?

Probably not, but if it can, this case will be easier than almost anyone expects.

  • Red states and the Trump administration argue that because the Supreme Court upheld the mandate as a tax in 2012, it became unconstitutional when Congress zeroed out the tax penalty in 2017.
  • Blue states counter that it still functions as a choice between buying insurance or paying a $0 penalty, and that no one is actually injured by the fact that the coverage requirement is technically still on the books with no penalty to enforce it.

2. Whose intent matters?

If the court strikes down the mandate, then the question turns to “severability” — how much of the rest of the ACA has to fall along with the mandate.

  • Severability is always a question of congressional intent. The courts try to figure out whether Congress still would have passed other provisions without the one the courts are striking down.
  • Texas and the Justice Department argue that the whole law has to go, and to substantiate that case they point to 2010, when Congress passed the individual mandate, and 2012, when the Obama administration defended it in court.
  • On both of those occasions, it’s absolutely true that Democrats believed the mandate was inseparable from protections for people with pre-existing conditions.
  • The blue states' counterargument: If you want to know whether Congress would have kept the rest of the ACA intact without the individual mandate, that's exactly what Congress did in 2017, when it zeroed out the mandate but left the rest of the law intact.

3. Who’s going to save it?

Blue states’ argument is based on the kind of textualist, congressionally focused principles that often work with conservative justices. But for the law to survive, at least two Republican appointees have to cross over and vote with the court’s liberals to save it.

  • Most observers expect Chief Justice John Roberts to be one of them. And there are reasons to believe he might find a second.
  • Earlier this year, Justice Neil Gorsuch raised some eyebrows when his approach to the conservative legal principle of textualism led him to a liberal policy outcome. Also this year, Justices Samuel Alito and Brett Kavanaugh joined Roberts in an important severability decision.
  • And Justice Amy Coney Barrett also mentioned the “presumption of severability” at her confirmation hearings.

Go deeper: How a conservative Supreme Court could save the ACA

Trump applies extreme pressure on Bill Barr to release so-called Durham Report

President Trump and his allies are piling extreme pressure on Attorney General Bill Barr to release a report that Trump believes could hurt perceived Obama-era enemies — and view Barr's designation of John Durham as special counsel as a stall tactic, sources familiar with the conversations tell Axios.

Why it matters: Speculation over Barr's fate grew on Tuesday, with just 49 days remaining in Trump's presidency, after Barr gave an interview to the Associated Press in which he said the Justice Department has not uncovered evidence of widespread fraud that could change the election's outcome.

Keep reading... Show less

CDC to cut guidance on quarantine period for coronavirus exposure

The CDC will soon shorten its guidance for quarantine periods following exposure to COVID-19, AP reported Tuesday and Axios can confirm.

Why it matters: Quarantine helps prevent the spread of the coronavirus, which can occur before a person knows they're sick or if they're infected without feeling any symptoms. The current recommended period to stay home if exposed to the virus is 14 days. The CDC plans to amend this to 10 days or seven with a negative test, an official told Axios.

  • The CDC did not immediately respond to a request for comment.

CDC panel: COVID vaccines should go to health workers, long-term care residents first

Health-care workers and nursing home residents should be at the front of the line to get coronavirus vaccines in the United States once they’re cleared and available for public use, an independent CDC panel recommended in a 13-1 emergency vote on Tuesday, per CNBC.

Why it matters: Recent developments in COVID-19 vaccines have accelerated the timeline for distribution as vaccines developed by Pfizer and Moderna undergo the federal approval process. States are preparing to begin distributing as soon as two weeks from now.

Keep reading... Show less

Obama: Broad slogans like "defund the police" lose people

Former President Barack Obama told Peter Hamby on the Snapchat original political show "Good Luck America" that "snappy" slogans such as "defund the police" can alienate people, making the statements less effective than intended.

What he's saying: "You lost a big audience the minute you say it, which makes it a lot less likely that you're actually going to get the changes you want done," Obama told Hamby in an interview that will air Wednesday morning at 6 a.m. EST on Snapchat.

Keep reading... Show less

Nasdaq's ultimatum to America's most powerful corporations

New diversity and inclusion rules are on the table for some of America's most powerful corporations, courtesy of one of its most powerful stock exchanges.

What's new: Nasdaq is threatening to delist companies that won't move toward having at least one woman and at least one underrepresented minority of LGBTQ person on their corporate boards.

Keep reading... Show less

Latinos make up nearly 18% of the U.S. labor force but occupy just 4% of executive roles

Latino professionals have the widest gap between representation in the labor force and executive positions — bigger than that of any other minority group.

Why it matters: Latinos will make up a quarter of the U.S. population by 2050, and scores of U.S. firms profit off of Latino consumers, but this group is absent from the business world's highest and most impactful decision-making positions.

Keep reading... Show less

Salesforce will buy Slack for $28 billion

Salesforce on Tuesday afternoon said it will pay $27.7 billion in cash and stock to buy workplace collaboration platform Slack.

Why it matters: This is the largest software merger since IBM agreed to buy Red Hat in late 2018, and creates a cloud giant that can better compete with Microsoft.

Go deeper: Salesforce rolls the dice on Slack

McConnell circulates revised GOP coronavirus stimulus plan

Senate Majority Leader Mitch McConnell circulated a new framework for coronavirus stimulus legislation to Republican members on Tuesday that would establish a fresh round of funding for the small business Paycheck Protection Program and implement widespread liability protections, according to a copy of the plan obtained by Axios.

Driving the news: The revised GOP relief draft comes after McConnell's meeting with House Majority Leader Kevin McCarthy, Treasury Secretary Steven Mnuchin and White House chief of staff Mark Meadows, during which they went over in detail what provisions would get backing from President Trump.

Keep reading... Show less

Insights

mail-copy

Get Goodhumans in your inbox

Most Read

More Stories