Supreme Court Appears Likely to Preserve Most of Affordable Care Act

November 10, 2020 by Dan McCue
(Photo by Dan McCue)

WASHINGTON — So much for the new conservative majority of the Supreme Court dismantling the Affordable Care Act.

On Tuesday, during oral arguments for California v. Texas, one of this term’s most anticipated cases, two members of that majority, suggested they’re not inclined to strike down the bulk of the law.

Republicans have been intent on shredding the Affordable Care Act since the moment it was enacted by President Barack Obama in 2010.

Yet the law, which provides access to health care for tens of millions of Americans, has withstood numerous court challenges and an attempt at repeal in the Senate chamber that died with a famous “thumb’s down” from the late Sen. John McCain.

The underlying lawsuit in California v. Texas was brought by Republican officials who said the health care law’s individual mandate — essentially a tax penalty imposed for failing to obtain health insurance — became unconstitutional in 2017, after Congress voided the penalty.

They went on to argue that the mandate they lifted was such a crucial feature of the law that the rest of the law had to crumble without it.

A federal judge in Texas agreed, ruling the entire law was invalid, but postponed implementing his ruling until an appeal could be heard.

Last year, at about the same time the House was holding impeachment hearings, the 5th U.S. Circuit Court of Appeals agreed the mandate was unconstitutional, but refused to pass judgment on the remainder of the law.

Instead, it said the lower court must reconsider the question in greater detail.

Shortly thereafter, the House of Representatives and a coalition of Democrat-controlled states intervened in the case, asking the Supreme Court to take up the issue.

If the law were to be repealed, it is estimated that more than 20 million people would join the ranks of the uninsured.

But during oral arguments on Tuesday, it appeared that five justices, including Chief Justice John Roberts and Brett Kavanaugh, believe the mandate is severable from the rest of the law, which would allow most of the Affordable Care Act to stand.

“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Kyle Hawkins, the Texas solicitor general leading the red-state effort.

“I think, frankly, that they wanted the court to do that. But that’s not our job,” the chief justice added

Kavanaugh, meanwhile, said he agreed with a lawyer defending the law who argued “this is a very straightforward case for severability under our precedents.”

He suggested therefore that the only appropriate remedy would be for the justices to “excise the mandate and leave the rest of the act in place.”

The Affordable Care Act survived two earlier challenges in the Supreme Court, with Roberts playing a decisive role.

In 2012, the court upheld the law’s requirement that most Americans obtain insurance or pay a penalty.

Writing for the 5-4 majority, Roberts said the mandate could stand because it was authorized by Congress’s power to assess taxes.

Three years later, the court held the federal government could provide nationwide tax subsidies to help poor and middle-class people buy health insurance, rejecting an argument that the subsidies were available only in states that had created exchanges allowing people to shop for individual health plans.

However, there have been dramatic changes since then, including the deaths of Justices Antonin Scalia and Ruth Bader Ginsburg, and the retirement of Justice Anthony Kennedy.

Kavanaugh is one of three new justices who have joined the court as a result, all of them appointed by President Donald Trump.

One of them, and the most recent to join the high court, is Justice Amy Coney Barrett, who has been publicly critical of the earlier rulings.

During Tuesday’s hearing Barrett pressed California Solicitor General Michael Mongan, who was representing a coalition of liberal-leaning states, about the burden on states and individuals even in the absence of a penalty related to the individual mandate.

Mongan told Barrett that the provision is effectively inoperable without a penalty. If the court disagrees and finds there is an ongoing requirement in the law, he said, then the “only proper remedy is to make it unenforceable and invalid,” not to eliminate the entire ACA.

Barrett responded by asking whether individuals must certify whether they maintain health coverage.

Mongan said the IRS no longer includes a box for individuals to check regarding health coverage.

At another point in the arguments, Barrett questioned the constitutionality of the individual mandate directly.

“Why couldn’t we believe when Congress zeroed out the tax that it was no longer a tax because it generated no revenue?” she asked.

Donald Verrilli Jr., who successfully defended the law as solicitor general in 2012, and who represented the House on Tuesday, said it was clear from statements made by Trump and Republican members of Congress that they were focused on the mandate and not the health care law in its entirety, when they axed the penalty.

“I do think there is wide agreement that those kinds of statements can be looked to as evidence of the meaning that a provision is capable of bearing,” he said.

In a statement issued after the Supreme Court hearing, Texas Attorney General Ken Paxton continued to maintain the Affordable Care Act exceeds Congress’s powers because it “commands” Americans to purchase health insurance.

“It is plainly unlawful for the federal government to order private citizens to purchase subpar insurance that they don’t want,” Paxton said. “Under Obamacare, Texans faced higher costs, fewer choices, and a power imbalance between the people and their government.

“The framers’ constitutional design leaves it to the states to identify and implement the best health care system for their citizens, particularly those with preexisting conditions. Today, Texas seeks to preserve that federalism. It’s time to end Obamacare’s one-size-fits-all approach and let the states do what works for them,” he added.

Also releasing a statement after the hearing were House Speaker Nancy Pelosi, D-Calif., and Senate Democratic Leader Chuck Schumer, D-N.Y.

“Today, the Trump-Republican plan to repeal the Affordable Care Act and strip health care away from millions of Americans during a global pandemic was on full display as the California v. Texas lawsuit was heard by the Supreme Court,” they said. “Republicans have tried and failed to repeal the ACA at least 70 times in Congress and twice through the courts, but as was heard in today’s oral arguments, the Supreme Court must be deferential to Congress’s intent and uphold the law. 

“With their legal argument detached from reality, Senate Republicans rushed through the nomination of Judge Amy Coney Barrett to the Supreme Court just days before the election, in an obvious attempt to make good on President Trump’s promise to only appoint judges who would ‘terminate’ the ACA,” they continued.

Pelosi and Schumer said without the Affordable Care Act, more than 20 million Americans could lose their health care coverage, 130 million Americans with pre-existing conditions could lose protections, and drug costs could skyrocket for seniors. 

“Democrats believe this lawsuit has no merit, and we will continue to fight to make coverage more affordable and accessible for all Americans,” they said.

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