The third issue before Judge O’Connor was the matter of whether the constituent pieces of the Affordable Care Act are “severable,” even if Congress did invalidate one piece of it. The principle of severability dictates whether courts can strike down whole laws if pieces of them are removed by legislation. According to Jonathan H. Adler and Abbe R. Gluck, two law professors, in an op-ed in The New York Times, “The principle presumes that, out of respect for the separation of powers, courts will leave the rest of the statute standing unless Congress makes clear it did not intend for the law to exist without the challenged provision.” In the view of pro-ACA lawyers, Congress’s very choice to pursue reconciliation indicates that the body did not intend to strike down the entire ACA at all.
For the immediate and near-term future, all this means that nothing much is changing for Obamacare. O’Connor did not issue an injunction against any part of the law, likely expecting an appeal and stay from the Democratic state attorneys general defending the ACA. Really, as the lawsuit barrels toward the higher courts and as partisan battle lines are drawn around it, the resolution to this drama could be far off, meaning most of the uncertainty is in the future.
But as the past few years have illustrated, future uncertainty is a key shaping agent of how such a complicated law plays out today. As predicted, open enrollment this year started out weak, with the federal healthcare.gov portal reporting a 12 percent drop-off in sign-ups through December 8.
While some of that drop-off is likely good news to some ACA advocates, since it reflects the spread of the Medicaid expansion to several states, part of the drop-off is undeniably connected to the loss of the individual mandate and the atmosphere of confusion that emanates from the White House. Especially for younger, healthier participants, Obamacare marketplaces rely on late surges to make a good deal of the final volume of sign-ups. With an adverse, complicated decision coming on the eve of the deadline, it’s unclear whether that traditional surge came through.
As a consequence, some Democratic officials are lobbying for an expansion of open enrollment. New Jersey Governor Phil Murphy called on “the Trump administration to extend this year’s enrollment period to allow us the chance to do just that, and to make it clear that the Affordable Care Act and its protections remain the law,” citing “disarray” from O’Connor’s decision as a reason.
Of course, the “disarray” suits President Trump, who has made it clear since his inauguration that both official attempts to repeal the law and bureaucratic efforts to derail it are wins for his priorities. In the wake of the loss of the individual mandate and chilled open-enrollment numbers, O’Connor’s decision itself—regardless of its chances in higher courts—is a victory for Trump. In the absence of the legislative or even popular will to repeal Obamacare, maximizing chaos will do just fine for Trump’s agenda.