"It does seem for the majority of cases, the Supreme Court says to look at the original legislation as enacted," O'Connor said. "Why would I not? Let's assume I don't buy the argument it is still a tax and believe the mandate should fall and I get to severability, why wouldn't I look at those cases?"
The ACA contains provisions stating that the individual mandate is "essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not include coverage of pre-existing conditions can be sold."
The Democratic attorneys general, who were forced into defending the law when the Trump administration bowed out, conceded the reconciliation rules Republicans used to pass the 2017 tax law barred Congress from amending or repealing the ACA's statutory language surrounding consumer protections.
The plaintiff GOP states, led by Texas Attorney General Ken Paxton, are asking for an injunction against the entire ACA starting in 2019. The U.S. Justice Department, which argued that the individual mandate and consumer protections be tossed but that the rest of the law stand, asked O'Connor to postpone judgment until after the individual market's open-enrollment period so as not to spook insurers.
"The last thing we want is for chaos in the market," said Justice Department attorney Brett Schumate.
O'Connor gave only cursory treatment to the baseline question of whether the individual mandate without an accompanying penalty could stand as constitutional in light of the Supreme Court's 2012 decision to uphold the ACA through the mandate as a tax.