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Political Gaze Shifts to the Supreme Court as Justices Hear Pivotal Health Care Case

November 10, 2020by Todd Ruger, CQ-Roll Call
Political Gaze Shifts to the Supreme Court as Justices Hear Pivotal Health Care Case
The U.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON — The Supreme Court with new Justice Amy Coney Barrett hears oral argument Tuesday in a case that threatens to wipe out the 2010 health care law, likely the term’s most consequential case, under a political spotlight that rarely shines brighter on justices who would rather stay out of it.

In the third major test for President Barack Obama’s signature law at the high court, the focus at oral argument largely will be on whether the justices will follow one of several ways to let the law stand, even though it is a more conservative court than in previous challenges.

It is the first major case for Barrett, who arrived after a divisive confirmation fight in the Senate that largely focused on what she might do in this case. President Donald Trump said in an interview with “60 Minutes” that he hopes the Supreme Court ends the law known as the Affordable Care Act — “It will be so good if they end it” — and Democrats argued that’s why he appointed her.

Many Supreme Court watchers say that’s a long shot, but still possible. Such a sweeping outcome would cut against the court’s traditional legal approach, conflict with decisions from just last term and defy the current reality about how the law continues to work in the real world.

Senate Majority Leader Mitch McConnell of Kentucky, who with other Republicans has tried to eliminate the law for a decade, said in a reelection debate that, “no one believes the Supreme Court is going to strike down” the law.

Some Democrats already have called for overhauls of the Supreme Court in anticipation of adverse decisions by a court reshaped by Trump’s third appointment in four years, but that could grow if Barrett and the court got rid of the law and popular provisions such as required coverage of preexisting medical conditions.

The arguments over the health care law will be held remotely over the telephone because of a raging COVID-19 pandemic with more than 10 million Americans contracting what could be a preexisting condition — and wiping out the law would roil an insurance market that has been operating under it for a decade.

And they happen as Trump and his campaign launch legal challenges to the results of the presidential election, which have so far been toothless. Nonetheless, Trump hopes his campaign will get to the Supreme Court so his appointees can toss out enough ballots to flip the results in enough states to secure him a second term.

Now that it does not appear the Supreme Court will decide the outcome of the election, the health care case becomes the most high profile issue.

The case centers on Republicans’ move to use the 2017 tax overhaul to nix the law’s penalty for most Americans who don’t get health coverage. The Trump administration and Republican-led states argue that move made the mandate to buy insurance unconstitutional, and lower courts agreed.

Whether the justices decide the mandate is unconstitutional won’t be as consequential as their views on other issues. That includes whether the challengers to the law have the right to bring the lawsuit in the first place, and particularly whether the mandate can be severed if found unconstitutional while leaving the rest of the law intact.

Trump and the challengers say that the individual mandate is such a central provision to the whole 2010 law that if the Supreme Court finds it unconstitutional that in turn means the remainder of the 2,000-page law “must also fall.”

The House will get 10 minutes to make its case before the justices, in an oral argument that will also run 20 minutes longer than the typical hour.

In briefs at the court, the House argues that Congress in 2017 might have zeroed out the penalty in Section 5000A of the law but it left the rest of the law intact “and fully operative” — and the challengers don’t have any evidence that the Congress viewed that section as critical to the law continuing.

“That is because Congress did not,” the House brief states. “This Court should reject respondents’ extraordinary attempt to leverage Congress’ amendment of a single sentence in Section 5000A into an excuse to invalidate the most sweeping public-health legislation in generations.”

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(c)2020 CQ-Roll Call, Inc., All Rights Reserved

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