Why a Democratic Senate majority 'likely moots' Supreme Court ObamaCare challenge

Democrats could be poised to take control of the Senate following the Georgia runoffs — meaning a key challenge to ObamaCare may be moot, one expert notes.

Democrat Raphael Warnock has been projected to defeat Sen. Kelly Loeffler (R-Ga.) in the Georgia Senate runoffs, while Democrat Jon Ossoff leads Republican David Perdue. The latter race hasn't been called, but should Ossoff win, Democrats would gain control of the Senate, with Vice President-elect Kamala Harris casting tie-breaking votes. And The New York Times health policy reporter Sarah Kliff observed Wednesday that "a Democratic majority in the Senate likely moots the Supreme Court challenge to ObamaCare that we're waiting on a verdict on."

After all, Kliff wrote that "there are some really simple policies Congress could pass that would nullify the lawsuit," pointing to a 2018 article from The Atlantic outlining numerous ways Congress can "intervene" to save the Affordable Care Act from legal challenges. The Trump administration and 18 red states have argued that Congress "rendered the law unconstitutional when it zeroed out the tax penalty for not buying insurance" in 2017, The New York Times writes.

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"First, Congress could make the mandate constitutional again by raising the penalty for not having insurance from zero dollars, where Congress set it in 2017, to one dollar," law professors Nicholas Bagley and Richard Primus wrote in The Atlantic in 2018. "Second, Congress could declare the individual mandate severable from all other parts of the ACA. Third, it could repeal the mandate — something that might once have wrecked the ACA but that now would have little or no effect on the rest of the regulatory framework."

Following oral arguments in November, the Supreme Court appeared likely to rule that "even if part of the law is no longer valid, the rest of it can be left intact," NBC News reported. A decision is expected by the spring.