ACA may survive latest challenge
Justices to hear current case on law Tuesday
WASHINGTON – When the Supreme Court rescued the Affordable Care Act five years ago from the second concerted effort to have it struck down, Associate Justice Antonin Scalia mused, “We really should start calling this law ‘SCOTUSCARE.’ ”
The quip from the leader of the court’s conservative wing, who died the following year, was in response to his colleagues’ dual rulings in 2012 and 2015 upholding President Barack Obama’s signature legislative achievement, which came to be known as Obamacare.
Even Chief Justice John Roberts smiled at the remark, and for good reason. He has presided over the health care law’s protection since its enactment in 2010. And this week, as opponents drag the statute back into court again, he appears poised to have the last laugh.
On Tuesday, the high court will hear the latest major challenge to the law, one based on Congress’ elimination in 2017 of the tax penalty intended to prod consumers to buy health insurance. Challengers, led by Texas and backed by the Trump administration, contend that the mandate is unconstitutional without any tax to enforce it.
Despite last month’s Senate confirmation of Associate Justice Amy Coney Barrett, which gives conservatives a 6-3 majority, most court-watchers predict the challenge isn’t likely to topple the 10year-old statute.
Nevertheless, the threat to more than 20 million consumers’ health coverage, along with other popular provisions of the law, looms as the biggest case on the Supreme Court’s 2020 docket. A ruling is expected by June.
The issue dominated much of Barrett’s Senate Judiciary Committee hearing, when Democrats displayed posters of constituents who rely on the law. They urged her to recuse herself from the case because of earlier writings and speeches critical of the court’s
prior rulings.
In a recent Suffolk University/usa TODAY poll, health care ranked as the fourth most important issue for voters in choosing a president, after the economy, COVID-19 and candidates’ character. A recent poll by Kaiser Family Foundation, a nonpartisan health care policy group, found 58% do not want the law overturned.
When the original case was heard in 2012, oral arguments inside the marble courtroom stretched for six hours over three days. On Tuesday, the court plans to dispose of the matter in about 90 minutes by phone, given the need to meet remotely because of the pandemic.
Several other cases involving elements of the law have reached the justices over the past eight years. Three of them dealt with Obama administration rules that required employers to offer free coverage of contraceptives as part of a preventive care package. Another focused on billions of dollars owed health insurance companies for the risks taken and losses incurred during the law’s infancy. More could be on the way.
“Nothing’s ever been easy about the ACA, in my experience at least,” said
former Solicitor General Donald Verrilli, who argued the 2012 and 2015 cases before the Supreme Court.
The latest challenge stems from the $1.5 trillion tax cut that Republicans in Congress passed and President Donald Trump signed in 2017. Among other things, it repealed the health care law’s tax on people who refuse to buy insurance. The tax was intended to prod them into the health care marketplace, rather than let them seek emergency care while uninsured.
In December 2018, federal District Judge Reed O’connor ruled that because the law was originally held to be constitutional under Congress’ taxing power, it could not survive without any tax. His ruling, which was put on hold while it was appealed, threatened to wipe out insurance for some 20 million people, protection for those with preexisting conditions, subsidies for low-income people, Medicaid expansions in 36 states, coverage for young adults up to age 26, and more.
A panel of the U.S. Court of Appeals for the 5th Circuit agreed, by a 2-1 vote, that the individual mandate is unconstitutional “because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power.”
But rather than strike down the entire law, as O’connor did, the panel sent the case back to his court for “additional analysis” on whether the rest of the statute could be severed from the mandate.
California and other states led by Democrats, along with the House of Representatives, asked the Supreme Court to step in, and the justices agreed. But since then, liberal Associate Justice Ruth Bader Ginsburg died in September and was replaced by Barrett. That creates the risk Democrats warned about during her confirmation hearing.
“Republicans are scrambling to confirm this nominee as fast as possible because they need one more Trump judge on the bench before Nov. 10 to win and strike down the Affordable Care Act,” Vice President-elect Kamala Harris said before last week’s election.
Asked if she would recuse herself from the case given her criticism of the earlier rulings, Barrett said it’s “a legal issue” that she would discuss with her colleagues.
The Trump administration has taken several positions in the dispute. It originally sought to strike down only the insurance mandate. Then it joined Texas and 17 other Republican-led states seeking to kill the entire law. Finally, it suggested such a ruling might be applied only in the states challenging it.
Meanwhile, advocacy groups on the left have mounted a full-scale effort to convince the Supreme Court to uphold the law a third time.
The three remaining liberal justices and at least two conservatives – Roberts and Associate Justice Brett Kavanaugh – are likely to find that most of the original, 906-page law does not have to be stricken just because the tax penalty has been eliminated.
When the original act was upheld in 2012, four conservative justices said the mandate requiring consumers to buy insurance was unconstitutional and could not be severed from the rest of the law. But now, even former Solicitor General Paul Clement, who argued for the law’s demise then, said a mandate without any tax to enforce it is no longer such an essential provision.