Court appears to stand by ACA
Key justices seem to reject latest Obamacare challenge
A majority of the Supreme Court appeared ready Tuesday to uphold the Affordable Care Act’s essential components in the face of the latest challenge to the health care law brought by Republican-led states and the
Trump administration.
Two key members of the court — Chief Justice John
Roberts Jr. and Justice Brett Kavanaugh — said plainly during two hours of teleconferenced arguments that
Congress’ decision in 2017 to zero out the penalty for not buying health insurance did not indicate a desire to kill the entire law.
With that, the latest effort to derail President Barack Obama’s landmark domestic achievement seemed likely to meet the fate of past endeavors. President
Donald Trump and Republicans have never summoned the votes to repeal the measure — even when in control of Congress and the White
House. And the court has been unwilling to do the work for them.
Roberts, a conservative who nonetheless became the bane of many on the right when he wrote the 2012 Supreme Court decision upholding the act’s constitutionality, alluded to that in Tuesday’s arguments.
“I think it’s hard for you to argue that Congress intended the entire act to fall ... 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 marshaling the effort on behalf of 18 Republican-led states.
“I think, frankly, that they wanted the court to do that. But that’s not our job,” he said.
Trump has said either a repeal of the law or the court’s nullification was necessary for a new health care plan to proceed, but he never offered a proposal. President-elect Joe Biden made it clear in a speech Tuesday that he intends to build upon the program.
“These ideologues are once again trying to strip health coverage away from millions of people,” Biden said, referring to Republican lawmakers.
But he said, “We’re going to build a health care system that puts you and your families first and that every American can be proud of.”
For challengers, the middle of a pandemic was an inopportune time to bring the case. The court battle gave Democrats an issue to press during the campaign, and a decision that would eliminate all of the law ’s popular provisions — such as covering people’s existing medical conditions or providing subsidies for purchasing health insurance — would threaten millions.
The case came before a court whose conservative leanings were strengthened by Trump’s nominees: Kavanaugh and Justices Neil Gorsuch and Amy Coney Barrett. But Kavanaugh was not coy. He said several times that the court’s precedents — presumably including an opinion he wrote last term — created a strong presumption that a law should be saved if the constitutional infirmity can be easily excised.
“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 told Hawkins.
Justice Elena Kagan, an Obama appointee, said it was strange to bring a lawsuit after Congress had gotten rid of the penalty for noncompliance.
“Congress made the law less coercive,” she said, wondering how that could turn it into “an unconstitutional command.”
Roberts, Kavanaugh and the liberals would make a majority of five to save the law, whatever the findings on the other aspects of the suit.
Gorsuch was harder to read, and so was Barrett. At her confirmation hearing just weeks ago, Democrats attempted to make the case for opposing Barrett by saying she was likely to rule against the ACA. As a law professor before she became a judge, Barrett criticized the court’s two previous decisions upholding the law. She wrote in a law review article that Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Roberts joined the court’s conservatives in saying that the commerce clause of the Constitution did not give Congress the authority to require Americans to purchase health insurance. But the chief justice and the court’s liberals said that the penalty for not buying insurance could be considered a tax and that the law thus was constitutional under Congress’s taxing power.
Barrett sounded skeptical that Congress could reduce the penalty to zero and still have it construed as a tax. But she did not ask questions or show her hand about whether she believed the rest of the law could stand even if that were the case.
The case is California v. Texas. A decision is likely to take months.