People need to calm down a bit--actually, calm down a lot--about the Affordable Care Act here. Odds are astoundingly low it'll get struck down.
This is a pretty useful writeup for why:
The Affordable Care Act is Safe (even with Justice Barrett)
For those who don't want to read through the whole thing, here's perhaps the most critical portion:
"However,
this lawsuit is silly. Don’t ask progressive legal analysts with a poor track record. Ask the conservative lawyers who built and supported the last couple cases against Obamacare! Jonathan Adler, who developed the argument in
King v. Burwell,
thinks this lawsuit is silly. Paul Clement, who argued
NFIB v. Sebelius before the Supreme Court,
thinks this lawsuit is silly. Republican attorneys general in Ohio and Montana — one of them a former clerk for Justice Scalia —
both think this lawsuit is silly.
The only people backing this case, even on the Right, are elected Republicans trying to gin up anti-Obamacare sentiment (which, legality aside, is incredibly
politically stupid right now).
There appear to be no votes on the Supreme Court in support of this case. Their severability doctrine precludes it. They have written about severability
with this case pending and have nevertheless re-affirmed traditional doctrine, boxing themselves in on this case. Where they disagree about severability, it’s in a way that makes this case
less likely to succeed, not more.
There is only one minor, partisan judge in the entire federal court system who has championed this case, which has reached the Supreme Court because of impatience, not seriousness.
Even many of the opponents of the ACA don’t think it should be taken seriously, and some have actively worked to fight this case.
Judge Barrett herself ruled on this case in a “moot court” academic exercise shortly before Justice Ginsburg’s death. Barrett was one of eight “judges” in the mock court, which split on the question of the mandate but ruled
unanimously to uphold the Affordable Care Act as it stands today.
Your Obamacare is safe."
And that analysis, which I find persuasive enough, focuses only on the question of severability. It doesn't even mention another major problem with the new lawsuit: The difficulty in establishing standing (i.e. that you're injured by a law) over a law that has no penalty in the individual mandate anymore.
I can't blame the Democrats politically for trying to drum up fear about it, though--as unlikely as it is the Supreme Court will strike it down, the ACA is popular enough right now that it makes more sense to try to pound that drum than any other cards they might have to play here. But it's still not something to actually be afraid of.
