Friday, October 30, 2020

If the Challengers Prevail on the Merits in California v. Texas, What Remedy? And What Happens to the Rest of the ACA?

Jason Mazzone

Let's say that in California v. Texas the Supreme Court holds that zeroing out of the potential tax penalty for failure to maintain the Affordable Care Act's specified health insurance coverage rendered unconstitutional the part of the Act providing that individuals “shall” maintain insurance coverage. What next? Over at Justia today Vik Amar, Evan Caminker and I provide our own take on available remedies and our own analysis of severability and how it should apply in California v. Texas. Our approach makes several key points that we think should inform the Court's remedial analysis but that have not been made in any of the briefs in the case.  

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