Oral arguments for Texas v California are this morning.
Republican attorney generals and the Trump Justice Department are arguing, evidently with a straight face, that after Congress tried and failed to repeal and replace the ACA over the summer of 2017, they snuck in a repeal of the entire ACA by changing the mandate penalty from 2.5% of income to $0 in the corporate tax cut bill signed in December 2017. Since the ACA individual mandate was only found to be constitutional in 2012 because it could be construed as a tax, a zero dollar tax is full repeal.
Yeah, that is their argument.
The Supreme Court has a broad set of options on how they want to deal with this lawsuit.
The easiest way to avoid a merits ruling is to ask a very simple question — what is the precise harm that any individual or state plaintiff can articulate from a $0 mandate penalty that is resolvable by litigation? What is the standing? There is no concrete harm for someone who refuses to buy creditable coverage. They can buy creditable coverage and pay nothing for a mandate because they met the rest of the language of the law or they can not buy creditable coverage and pay nothing. What is the alleged concrete injury that is correctable by a judicial remedy? What is the standing?
The court can also rule on the merits and say that Congress can and will change course, alter policy and repeal previous policy but they have to do so loudly and clearly. The court had several rulings last term that effectively stated that Congress has to be clear in what it is doing. Congress made its intent clear; they tried and failed to repeal and replace the ACA as there never was a 51 vote working coalition in the Senate to do that. However there was a working coalition that very strongly believed that it could zero out the individual mandate and nothing else and have the law keep on working (as it actually has).
If the court wants to toss the plaintiffs a bone, they can rule that a zero dollar mandate is unconstitutional as a tax but only about a page of the law has to get tossed with that ruling. The command and the penalty would be severed. Guaranteed issue, community rating and subsidies would still exist.
If the court wants to upend the law entirely, they can rule a zero dollar mandate as unconstitutional and unseverable from either the entire law or just title 1 which is the individual market reforms. This would be judicial full repeal.