Today, as Donald Trump is on the verge of being impeached, the 5th Circuit Court of Appeals ruled that the shreds of the individual mandate as gutted by House Republicans in 2017 is unconstitutional. This was expected. What was not expected was their refusal to rule on whether the murder of the mandate killed the entire law.
It was supposed to play out this way: Judge Reed O'Connor struck down the mandate, setting it up for the 5th Circuit Court of Appeals to negate the entire law under the severability clause which says that if one provision is struck down, all provisions are struck down.
Instead of ruling, the 5th Circuit said, that yes, the mandate as gutted is indeed unconstitutional but it's up to Judge O'Connor to revisit his ruling that the entire law must be struck down.
But speculation is unnecessary here because Congress already answered that question. Lawmakers spent months debating how much of the Affordable Care Act to repeal. Ultimately, they only had enough votes to repeal one provision — the individual mandate. So we know that Congress would have enacted a law that eliminated the individual mandate and keeps the rest of the law because Congress enacted a law that eliminated the individual mandate and kept the rest of the law.
The Supreme Court, moreover, requires courts to apply an extraordinarily strong presumption against striking additional provisions of a law. As Justice Samuel Alito explained in the Court’s opinion in Murphy v. National Collegiate Athletic Association, “in order for other . . . provisions to fall, it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”
The correct analysis, in other words, would be for the Fifth Circuit to uphold every provision of the Affordable Care Act that actually does anything at all. Instead, it punts the severability question back down to Judge O’Connor.
There is no question in my mind that O'Connor will immediately rule to strike down the entire law, and the Federalist Society will reward him handsomely. If we don't stop Trump from reshaping the courts by booting him from office in the 2020 election, they will succeed in destroying the ACA and possibly pulling Medicare down at the same time. That is, after all, the goal of the Republican crime syndicate.