A challenge to the Affordable Care Act got a relatively hostile reaction at a virtual Supreme Court hearing on Tuesday, offering hope for the millions of people who depend upon the law for their health care.
In oral arguments, both Chief Justice John Roberts and Associate Justice Brett Kavanaugh expressed skepticism about a key argument in the lawsuit ― specifically, that if one part of the Obamacare law is unconstitutional, then the entire law has to come off the books.
In this case, according to the plaintiffs, the fatal constitutional flaw is the Affordable Care Act’s “individual mandate,” which in the original statute imposed a financial penalty on people who don’t get health insurance. A 2017 tax law passed by a GOP-controlled Congress reduced the penalty to zero.
The plaintiffs, who are Republican attorneys general representing 18 states, say that eliminating the fine turned the mandate into a coercive command ― and that, as a result, all of Obamacare has to go. The Trump administration is backing their lawsuit.
Democratic officials representing 20 states and the District of Columbia, along with the U.S. House, are defending the law. They dispute the idea that the mandate is now a coercive, unconstitutional command.
But even if the mandate is now unconstitutional, they say, the rest of the Affordable Care Act can stand. And during oral arguments on Tuesday, both Roberts and Kavanaugh made statements suggesting they agree.
“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” Kavanaugh said to Kyle Hawkins, the Texas solicitor general arguing to strike the law down.
Questions from the justices don’t always indicate how they will later vote, in part because justices sometimes change their minds.
It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place. Justice Brett Kavanaugh during oral arguments on the Affordable Care Act
But legal analysts from across the political spectrum thought the statements were hints at how Roberts and Kavanaugh would likely vote. And that could save the remainder of the Affordable Care Act, given that the three Democratic appointees on the bench are also expected to vote to uphold the rest of the law, even if the mandate itself comes off the books.
“While it isn’t clear where they stand on the constitutionality of the mandate, based on their questions today ― which of course cannot predict anything with certainty ― it seems likely they would vote to uphold the rest of the ACA even if the mandate is struck down,” Abbe Gluck, a Yale University law professor, told HuffPost.
“The argument made clear the plaintiffs’ attempt to upend the ACA will fail,” said Jonathan Adler, a Case Western University law professor who supported previous challenges to the Affordable Care Act. “The only question is ‘how.’ There seemed to be five solid votes for severability of the mandate as both the Chief Justice and Justice Kavanaugh expressed profound skepticism of plaintiffs’ claims here.”
“The Chief and Justice Kavanaugh are both expressing strong skepticism of the red states’ position on severability,” Joseph Palmore, a former assistant to the U.S. solicitor general who is now co-chair of Morrison & Foerster’s Supreme Court practice group, wrote on Twitter. “If they stick with that position, the #ACA will survive.”
Big Stakes And Hostile Questions
The stakes of the lawsuit, now called California v. Texas, are enormous.
If it prevails, roughly 21 million people could lose insurance because funding for expanded Medicaid and private insurance subsidies would vanish. Protections for people with preexisting conditions would also go away, while the entire health care system would be plunged into chaos because the law has such broad sweep.
Although President Donald Trump has said he hopes the challenge to the Affordable Care Act succeeds, Republicans have mostly distanced themselves from it. Democrats, for their part, have been highly critical of the case. That includes President-elect Joe Biden, who on Tuesday called the GOP-led lawsuit “cruel and needlessly divisive,” particularly amid the coronavirus pandemic.
“This case represents the latest attempt by the far-right ideologues to do what they repeatedly failed to do for a long time in the courts, the Congress, the court of public opinion for the last decade: to eliminate the entirety of the Affordable Care Act,” Biden said during a press conference in Wilmington, Delaware.
“The consequences of the Trump administration’s argument are not academic or an abstraction,” Biden added. “For many Americans, they’re a matter of life and death, in a literal sense. This argument will determine whether health care coverage of more than 20 million Americans who acquired it under the Affordable Care Act will be ripped away in the middle of the nation’s worst pandemic in a century.”
The health care law has already survived two Supreme Court challenges. The first one, from 2012, focused on the same underlying issue in Tuesday’s case: the individual mandate. Writing for a 5-4 majority, Roberts upheld the mandate on the grounds that it was a constitutionally permissible use of the federal government’s power to levy taxes.
That was the end of that particular issue until 2017, when Trump and the Republican Congress reduced the penalty to zero as part of a tax bill. The new lawsuit contends that the 2017 change means the mandate, whose language remains part of the statute, is no longer a tax ― and that, as a result, both it and the rest of the law are unconstitutional.
A large, ideologically broad chorus of legal experts have said the latest case lacks merit. And the aspect of the lawsuit that has drawn the most criticism is the same one that attracted so much scrutiny on Tuesday: the issue of severability.
Congress left the rest of the law intact. ... That seems to be compelling evidence on the question. Chief Justice John Roberts, pointing to the 2017 law that ended the individual mandate's penalty
The Republicans challenging the Affordable Care Act say the entire law is now invalid because its component parts are so interconnected ― and because that is what Congress would have wanted. They base this argument, in part, on the fact that in 2010 Congress issued a finding that the mandate was essential for some other parts of the law to work.
But in 2017, Congress understood that the rest of the law would remain in place when it zeroed out the mandate’s penalty and did so anyway. Democrats have said that’s the most relevant indicator of congressional intent, as Donald Verrilli, the former U.S. solicitor general now representing the U.S. House, argued during his portion of oral argument on Tuesday.
Verrilli pointed out that by 2017, Congress could see that the Affordable Care Act’s new insurance markets would work even without a penalty in place. “Congress is allowed to learn from empirical experience in the world and adjust its policy choices,” Verrilli said.
A few minutes later, in a question to Hawkins, the chief justice signaled that he agreed.
“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down,” Roberts said. “Congress left the rest of the law intact. ... That seems to be compelling evidence on the question.”
Kavanaugh, for his part, kept coming back to the broader principle that courts should start with a presumption of severability ― i.e., that the rest of a law can survive when one part is found to be unconstitutional. He raised it three separate times, the last in a question to acting U.S. Solicitor General Jeffrey Wall, who was arguing on behalf of the Trump administration.
“We have a strong background presumption of severability, which reflects a long-standing understanding of how Congress works and our respect for Congress’ legislative role,” Kavanaugh said.
Other Issues Came Up Too
When questioning the Affordable Care Act’s defenders, the justices spent the bulk of their time on the matter of whether the plaintiffs ― the Republican states ― have “standing” to sue. There was also discussion of the merits of the argument on the mandate ― that is, whether it’s an unconstitutional command now that the penalty is zero.
Justice Elena Kagan, one of the three more liberal members of the high court, said it was hard to see how removing a penalty could make the mandate more onerous than it was in 2012 when the court last upheld it.
“If you make a law less coercive, how does it become more of a command?” she said.
It wasn’t clear whether other justices were inclined to agree. But practically speaking, it won’t matter as long as there are at least five votes to uphold the law regardless of the mandate’s constitutionality. The Affordable Care Act will then keep functioning like it does today.
Jeffrey Young contributed reporting to this article.