Supreme Court looks ready to back ACA
WASHINGTON — Supreme Court justices on Tuesday sounded ready to uphold the Affordable Care Act for the third time and reject the latest challenge from its conservative critics, including President Donald Trump.
Most of the justices gave a skeptical hearing to Texas Republicans and Trump’s lawyers, who insisted the entire law, also known as Obamacare, should be voided because Congress had eliminated the tax penalty for those who did not have insurance.
Several justices said that while this change may have ended the much-disputed insurance “mandate,” removal of the provision did not invalidate the rest of the broad, popular law, including coverage protections for people with preexisting conditions and government subsidies that help tens of millions of low- and moderate-income Americans secure coverage through Medicaid and insurance marketplaces created by the law.
Chief Justice John G. Roberts Jr. — who twice before joined liberal justices to uphold the law — said Congress in 2017 did nothing more than eliminate the tax penalty for those who did not have insurance.
“Congress left the rest of the law intact. That seems to be compelling evidence on the question” of whether the rest of the law should stand, he said. If Congress did not repeal the entire law at that time, why should the Supreme Court do it now, he asked.
“That’s not our job,” Roberts said.
Justice Brett M. Kavanaugh took a similar view, suggesting
that even if the insurance requirement is unconstitutional, that should not affect the rest of the law. “It seems very clear the proper remedy is to sever the mandate provision and leave the rest,” he said.
Joined by the three liberal justices, Roberts and Kavanaugh — Trump’s second Supreme Court pick — could form a majority to uphold the law.
That would not only preserve coverage for millions, but allow Presidentelect Joe Biden to focus on expanding insurance protections, a central plank of his campaign platform.
Speaking Tuesday in Wilmington, Del., Biden reiterated his commitment to begin that work when he takes office in January.
“We are going to fight for your family’s health care,” Biden said. “This doesn’t need to be a partisan issue. It’s a human issue.”
Tuesday’s hearing marked the third major challenge to Obamacare to come before the high court as well as the first major test for Justice Amy Coney Barrett, named to the court last month by Trump.
Senate Democrats opposed Barrett — who replaced liberal icon Justice Ruth Bader Ginsburg — predicting she would cast the key vote to strike down the law. During her confirmation hearing, she suggested she did not see a reason for striking down a broad law because of one flawed provision.
Barrett did not tip her hand during Tuesday’s argument as to how she would rule, though she questioned whether Congress had the constitutional power to enforce the health care law if the tax penalty was reduced to zero.
The justices also spent much of Tuesday’s argument questioning whether the plaintiffs from Texas had standing to sue. Usually plaintiffs must show they have suffered an injury or loss to challenge a federal law.
Justice Elena Kagan said it made no sense to say the Texas plaintiffs were hurt when the penalty was removed. “Congress made the law less coercive,” she said. How does that become “an unconstitutional command?”
The court could avoid ruling directly on the law by saying the plaintiffs had no standing.
Some justices may agree, however, that ending the tax penalty had the effect of cutting out the pillar that upheld the entire law, as the challengers maintained.
Justices Clarence Thomas and Samuel A. Alito Jr. have voted twice to strike the law, and they may well do so again. And Justice Neil M. Gorsuch questioned its constitutional basis, as did Barrett.
But in addition to their remarks Tuesday, the chief justice and Kavanaugh both wrote in separate opinions earlier this year that the court should not strike down broad laws because one provision is unconstitutional. Roberts said the court should use “a scalpel rather than a bulldozer” when reviewing laws.
It is “not a game of gotcha,” Kavanaugh wrote, so that one bad clause brings down an entire law.
When he was elected, Trump promised to “repeal and replace” Obamacare, but he did neither, despite Republican control of Congress for his first two years.
GOP lawmakers in 2017 did manage to effectively cancel the tax penalty as part of Trump’s tax-cut bill. This was portrayed as a minor adjustment because it only affected the mandate provision.
But Texas Attorney General Ken Paxton filed a suit contending that revoking the tax penalty meant the entire law must fall. He relied on the notion that the tax penalty was seen as crucial to the high court’s decision upholding the law in 2012.
While most legal experts saw this claim as farfetched, it won before a conservative federal judge in Fort Worth, and a 2-1 panel of the 5th Circuit Court in New Orleans.
California Attorney General Xavier Becerra led the defense of the law and urged the high court to hear an appeal and end the legal threat to the Affordable Care Act. The Trump administration joined the case on the side of Texas.
Health care leaders say the COVID-19 pandemic has only highlighted the need for preserving the law.
“The ACA extended health coverage to millions of historically uninsured and vulnerable people in Los Angeles,” said Dr. Christina Ghaly, director of health services for Los Angeles County. “Whether it was people experiencing homelessness, those with preexisting conditions, or anyone between the age of 18 and 65 who simply could not afford it, the ACA meant coverage for an essential set of health benefits.”
Invalidating the whole law would allow health insurers to resume their long-standing practice before the law’s enactment of turning away people with preexisting medical conditions.
Such a decision would also likely strip health insurance from tens of millions of Americans who have gained insurance since the law’s coverage expansion began in 2014. Gone would be state-based insurance marketplaces that have provided coverage options for Americans who don’t get health benefits at work.