The U.S. Supreme Court Nov. 10 will hear oral argument in California v. Texas, the latest challenge to the Affordable Care Act. 

The plaintiffs — individuals opposed to the ACA and a Texas-led coalition of states — contend that when Congress set the tax penalty for failing to purchase insurance to $0, the ACA’s requirement that most Americans obtain health insurance became unconstitutional. If the court agrees, the question becomes what to do with the rest of the ACA, a concept known as “severability.”

The plaintiffs argue the mandate is not severable from the rest of the ACA — if the mandate falls, the rest of the ACA must fall with it. The plaintiffs are opposed by a California-led coalition of states, the U.S. House of Representatives, and an array of “friends of the court,” including AHA. They argue that the individual mandate can be severed from the rest of the ACA — that is, even if the mandate is now unconstitutional, the rest of the ACA should remain in effect.

AHA’s outside counsel Sean Marotta, a partner at Hogan Lovells, drafted AHA’s friend-of-the-court brief in the case. Marotta will be live tweeting the oral argument and providing analysis for AHA at @smmarotta starting at 10 a.m. on Nov. 10. Below, he shares five things to look for at oral argument.


1. Will we be able to tell from oral argument who is going to win?

It’s hard to predict a case’s outcome based on oral argument. Justices sometimes play devil’s advocate or pose tricky hypotheticals to an advocate they support to better understand the legal principles or clarify a party’s position. Some commentators believe, however, that the side that gets more questions is less likely to win. But that rule of thumb won’t work on Tuesday. Because of the pandemic, the court is hearing oral argument by phone and having justices each ask questions in order of seniority, with the chief justice going first and Justice Barrett, the court’s newest member, going last. And because all of the justices will be asking questions of both sides, the justices’ questions won’t necessarily tell us which side they are going to vote for.

2. Does the court question the plaintiffs’ standing to bring suit?

Every federal-court plaintiff must show it has “standing” to bring suit. That means that the plaintiff must show that the challenged law has harmed it in some tangible way. California and the House have argued that the individual plaintiffs do not have standing because if they choose to not purchase insurance, nothing will happen to them. The $0 mandate penalty means that they can remain uninsured without consequence. California and the House also have argued that Texas and the other states are not injured by the mandate; they have not shown that the mandate increases their health care spending or administrative costs. If the court is interested in these arguments, it could mean the plaintiffs’ challenge will be rejected without the court ever reaching the merits.

3. Will Justice Kavanaugh be skeptical of the plaintiffs’ arguments?

Although Justice Kavanaugh is considered part of the court’s conservative wing, he has previously rejected expansive severability arguments like the plaintiffs’. In a July decision, Justice Kavanaugh wrote that “Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.” That line seems tailor-made for this case; the plaintiffs are trying to use what they contend is a constitutional flaw with the individual mandate to bring down the rest of the ACA. Justice Kavanaugh’s questions may indicate that he thinks his July opinion is controlling.

4. What role will Justice Barrett play?

The ACA was a centerpiece of Justice Barrett’s confirmation hearings, with senators repeatedly asking how she will decide this case. Justice Barrett declined to comment as a nominee, but as a law professor criticized the court’s earlier decision upholding the individual mandate’s constitutionality. The legal issues in this case are different, however, and her earlier criticism may not carry over. And even if she votes for the plaintiffs, it still may not be enough to form a five-justice majority if Chief Justice Roberts and Justice Kavanaugh vote with the court’s three remaining liberal justices.

5. Will the Justices bring up the practical impact of striking down the ACA on patients and hospitals?

AHA’s friend-of-the-court brief explained that striking down the ACA would leave 24 million patients uninsured and increase hospitals’ uncompensated care burden by $24.6 billion over a five-year period. These are not abstract numbers. Patients without insurance frequently forgo necessary care, and hospitals without financial support find it more difficult to care for their patients and their communities. Much of Tuesday’s hearing will focus on dry legal doctrines. But don’t be surprised if one or more justices brings up the real human costs if plaintiffs prevail.

Sean Marotta is a partner at Hogan Lovells who authored AHA's amicus brief in the ACA case.

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