Conservative U.S. Supreme Court justices suggest parts of Obamacare could be severed without tossing the law
Reuters | Posted: November 10, 2020 5:43 PM | Last Updated: November 10, 2020
John Roberts, Brett Kavanaugh commented on Affordable Care Act's mandate to buy insurance
The U.S. Supreme Court on Tuesday grappled with whether all of Obamacare should be thrown out in a challenge by Republican-governed states, backed by President Donald Trump's administration, with two conservative justices suggesting the law should remain intact even if one provision is struck down.
Chief Justice John Roberts and fellow conservative Brett Kavanaugh both asked questions that suggested they were skeptical of Republican arguments that all of Obamacare must fall even if one provision, known as the individual mandate, is found to be unconstitutional. That provision required people to obtain insurance or pay a financial penalty.
"It's hard for you to argue that Congress intended the entire Act to fall if the mandate was struck down," Roberts said, noting that Congress did not repeal the entire law in 2017 when it eliminated the financial penalty under the individual mandate.
Roberts and Kavanaugh appeared to agree that the mandate to buy insurance can be severed from the rest of the law.
"We ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed," Roberts said, noting that Congress in 2017 chose to leave the rest of the law intact. "That seems to be compelling evidence."
Kavanaugh said that "this is a fairly straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place."
The justices heard arguments by teleconference in an appeal by a coalition of 20 states including Democratic-governed California and New York and the Democratic-controlled House of Representatives hoping to preserve Obamacare. The court, with three Trump appointees including Kavanaugh, has a 6-3 conservative majority.
'Cruel and needlessly divisive'
President-elect Joe Biden has criticized Republican efforts to throw out the Affordable Care Act (ACA), as the law is formally known, in the midst of a deadly coronavirus pandemic and hopes to buttress Obamacare after taking office on Jan. 20.
The case represents the latest Republican legal attack on the 2010 law, which was the signature domestic policy achievement of former Democratic president Barack Obama, under whom Biden served as vice-president. The Supreme Court in 2012 and 2015 fended off previous Republican challenges to the law.
WATCH | Biden vows to continue to build on Obamacare:
"This effort to bypass the will of the American people, the verdict of courts in the past, the judgment of Congress in my view is simply cruel and needlessly divisive," Biden said Tuesday from Wilmington, Del.
Biden said he and vice-president-elect Kamala Harris, once in office, will "do everything in our power to ease the burden of health care" for Americans.
The justices — conservatives and liberals alike — raised questions over whether Texas and the other challengers had the proper legal standing to bring the case, worrying about similar scenarios in which someone might be able to sue over some other government mandate when no penalty exists.
Roberts said such a stance "expands standing dramatically" by enabling people to challenge a whole host of laws without experiencing direct harm.
Barrett doesn't tip her hand
Justice Amy Coney Barrett, Trump's most recent appointee, asked skeptical questions about legal standing.
Ahead of Barrett's Senate confirmation last month, Democrats focused their opposition to her appointment on the Obamacare case, fearing she would vote to strike down the law. Her questions did not indicate she would.
Trump's third appointee, Justice Neil Gorsuch, asked probing questions on standing, though he sounded skeptical about the individual mandate's constitutionality.
The 2012 Supreme Court ruling authored by Roberts upheld most Obamacare provisions including the individual mandate. The court defined this penalty as a tax and thus found the law permissible under the Constitution's provision empowering Congress to levy taxes.
The 2017 Republican-backed change eliminating the penalty meant the individual mandate could no longer be interpreted as a tax provision and was therefore unconstitutional, the Republican challengers argued in their lawsuit filed in 2018.
Texas-based U.S. District Court Judge Reed O'Connor in 2018 ruled that Obamacare was unconstitutional as currently structured following the elimination of the penalty.
The New Orleans-based 5th U.S. Circuit Court of Appeals last year also found the mandate unconstitutional but stopped short of striking down Obamacare. The Democratic-led states and House then appealed to the Supreme Court.
If Obamacare were to be struck down, up to 20 million Americans could lose medical insurance and insurers could once again refuse to cover people with pre-existing medical conditions. Obamacare expanded public health-care programs and created marketplaces for private insurance.
Donald Verrelli, the lawyer representing the House, told the justices that the Republican challengers were "asking this court to do what Congress refused to do when it voted down repeal of the ACA in 2017. But their argument is untenable."
"The Affordable Care Act has been the law of the land for 10 years," Verrelli added. "The health-care sector has reshaped itself on reliance on the law. Tens of millions of Americans rely on it for health insurance that they previously could not afford and more rely on the law for its protections and benefits."
Michael Mongan, California's solicitor general, told the justices that "what Congress did here was to create an inoperative provision. It doesn't require anybody to do anything."
"Why the bait and switch?" Roberts asked Verrelli in relation to the Democratic arguments that losing the mandate would not scuttle the law, which is not what they argued in the Supreme Court's 2012 case. Then, Verrelli represented the Obama administration in defending Obamacare.
Verrelli responded that Congress actually adopted a "carrot and stick" approach in adopting Obamacare and that "it turned out that the carrot worked without the stick."