ACA backers feeling more hopeful after Supreme Court hearing
CAPTURING THE HEALTHCARE industry’s mood following last week’s Supreme Court hearing on the Affordable Care Act, Sean Marotta said the law’s supporters “should be feeling pretty good right now.”
Marotta, a partner at Hogan Lovells and outside counsel for the American Hospital Association, acknowledged in a Nov. 11 AHA podcast that oral arguments are not a perfect predictor of a final ruling. But he noted that two of the court’s conservative members—Chief Justice John Roberts and Justice Brett Kavanaugh—“signaled that they were not on board” with the argument that the entire law must fall if the individual mandate is deemed unconstitutional.
During the Nov. 10 oral arguments, the full nine-member court heard from four attorneys representing parties in California v. Texas, a case brought by GOP attorneys general and supported by the Trump administration. The justices homed in on whether challengers had legal standing and if the zeroed-out individual mandate could be separated from the rest of the law.
The 5th U.S. Circuit Court of Appeals ruled that Congress’ 2017 decision to zero out the individual mandate made it unconstitutional, but the court remanded severability questions.
The arguments have high stakes because the court’s decision could destabilize the framework the healthcare industry has operated under for a decade. There’s also a possibility that Congress will still be divided next year, which would complicate any legislative response to the court’s decision.
Questioning standing
Every justice asked questions about whether GOP-led states and individuals had standing to challenge the ACA, even though two lower courts determined that they did.
“If the justices say there’s no standing, the Supreme Court upholds the ACA in this case,” Manatt, Phelps & Phillips Managing Director Joel Ario said.
The justices debated whether individuals could potentially be injured by complying or not complying with a zeroed-out individual mandate. Defenders of the law argued that individuals have a choice to purchase insurance, while challengers argued that the mandate is a command.
“Is someone who does not follow the mandate violating the law?” Roberts asked.
“With so much policy passed through omnibus or reconciliation bills, the situation where an individual could challenge all parts of a law could create chaos in our system.”
Lynn Blewett, University of Minnesota health policy professor
Questions were also raised about whether GOP-led states provided enough evidence that the zeroed-out individual mandate imposes a significant cost burden.
And several justices asked how the court would determine which provisions of the ACA supposedly harmed the challengers, and what the limits of such an approach could be.
“You’re talking about almost 1,000 pages here and you’re letting someone not injured by the provision he is challenging to roam around through those thousand pages and pick out whichever ones he wants to attack,” Roberts said.
University of Minnesota health policy professor Lynn Blewett said the concerns expressed by Roberts and other justices spoke to the nature of the modern legislative process.
“With so much policy passed through omnibus or reconciliation bills, the situation where an individual could challenge all parts of a law could create chaos in our system,” Blewett said.
Tackling severability
“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down,” Roberts told Texas Solicitor General Kyle Dawkins.
Roberts also expressed skepticism at Dawkins’ characterization that legislative findings related to the ACA constituted an inseverability clause.
“It doesn’t look like any severability clause anywhere else in the rest of the U.S. Code to me,” Roberts said.
Kavanaugh was equally direct about his current thinking, saying, “It does seem fairly clear that the proper remedy would be to sever the mandate and leave the rest of the act in place.”
The Supreme Court is expected to rule in the case by June 2021.