Clement represented challenges in the first Supreme Court challenge to the 2010 law, and argued that mandate was unconstitutional and therefore the whole law must fall. But he said that was back when the law was new, and the government argued that the mandate was an essential part of making the whole law work.
“But to make that argument in the context where Congress, after it was done with its 2017 work, left the whole statute in place with a zero tax mandate? Well that’s just a very different argument,” Clement said. “And it seems like a tougher argument.”
In a brief in the case focused on severability, a group of law professors pointed out that the two most recent statutes to amend the 2010 law — titled the CARES Act and the Families First Act, both enacted to address the current COVID-19 pandemic — rely on the health law’s existence, expand on its insurance benefits, and refer to it in numerous provisions.
“If Congress in 2017 did not intend the rest of the ACA to exist with a toothless mandate, it would not later have relied on it as the backbone of its public-health response to a global pandemic,” the professors, who disagreed with each other in the original constitutional challenge to Obamacare, wrote.
Veteran Supreme Court litigator Paul Smith of the Campaign Legal Center noted that it’s conceivable that a new justice could reshape this case. But Smith said the severability issue “ought to not be difficult and it may well be that the court could agree around that and make this an easy case.”