Epstein said that even though the court leans more conservative now after President Donald Trump appointed Justices Neil Gorsuch and Brett Kavanaugh, the Texas case stands on shaky legal ground and is unlikely to eviscerate the ACA, especially because Chief Justice John Roberts has “saved” it in previous cases.
“I am firmly in the camp of folks who believe that even if the individual mandate is determined to be unconstitutional, it should readily be severable from the rest of the law,” she said. “It's hard for me to imagine a world where the Supreme Court determines that it's not severable. It's just not a sound legal decision.”
At this point, the Trump administration has no backup plan in the event that courts do repeal the ACA, giving some people who support repeal pause — 43 percent of Republicans think the courts should repeal the ACA only if the administration has a plan to calm the uncertainty that would inevitably follow the disappearance of such an overarching health care framework. Still, roughly a third of Republicans support repeal regardless.
The ongoing legal and regulatory uncertainty “makes it very hard for insurance markets to function well,” according to Katherine Baicker, an economist and dean of the University of Chicago Harris School of Public Policy. “To get good risk pooling and financial protections in insurance markets, you need stable pricing environments and clearly understood subsidies and participation requirements.”
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