Supreme Court appears unlikely to ax Obamacare

Third challenge to ACA before Supreme Court

Roberts, Kavanaugh signal they may not favor undoing health care law.

WASHINGTON – The Supreme Court appeared likely Tuesday to uphold the Affordable Care Act for the third time in eight years, even with the Trump administration urging its elimination before an emboldened conservative majority on the nation’s highest court.

After upholding the health care law in 2012 and 2015, the court was faced with a new Republican challenge stemming from Congress’ elimination in 2017 of the penalty imposed on consumers who refuse to buy health insurance. Since the law originally was upheld as a tax, challengers argued it became unconstitutional without one.

But even if the mandate to buy insurance has to be struck down, two key justices indicated that the rest of the 906page law should be able to survive without it.

One was Chief Justice John Roberts, who has played the leading role in rescuing the health care law in the past. When Congress repealed the tax penalty in 2017, he said it did not try to strike down the entire law.

“They wanted the court to do that, but that’s not our job,” Roberts said.

And Associate Justice Brett Kavanaugh called the dispute “a very straightforward case” pointing toward severing one provision of the law, rather than striking down the whole statute.

The case is the most consequential one on the court’s 2020 docket, threatening health coverage for more than 20 million people and protections for millions more with preexisting conditions. A ruling is not expected until the middle of next year.

The case comes to the court just as its conservative majority had been bolstered by the confirmation of Associate Justice Amy Coney Barrett. First named to a federal appeals court three years ago, she has replaced liberal Associate Justice Ruth Bader Ginsburg, who died in September.

The fate of the ACA dominated much of Barrett’s confirmation process. Democrats on the Senate Judiciary Committee urged her to recuse herself from the case because she criticized the court’s earlier rulings on the law while a Notre Dame Law School professor.

Barrett refused to make that pledge but said, “I’m not here on a mission to destroy the Affordable Care Act.”

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 Among other provisions, it repealed the law’s tax on consumers who refuse to buy insurance, preferring to wait until they need medical care.

Defenders of the law, led in court Tuesday by California Solicitor General Michael Mongan and former U.S. solicitor general Donald Verrilli, said the law no longer depends on the so-called individual mandate to buy insurance. For that reason, they said, the rest of the law does not have to be scuttled if the mandate is found unconstitutional.

In December 2018, federal District Judge Reed O’Connor ruled that because Roberts originally upheld the law under Congress’ taxing power, it could not survive without any tax. His ruling, on hold while it was appealed, threatened to wipe out the entire law, including subsidies for low-income people, Medicaid expansions in all but a dozen 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, the panel sent the case back to his court for additional analysis on whether the rest of the mandate could be severed from the statute.

The case pits Texas and 17 other states opposed to the law against California and 18 other states, plus the District of Columbia, that support it. During Tuesday’s oral argument, several justices wondered whether those challenging the law even had legal standing to do so, a potential vulnerability that could end the case short of a ruling on the merits.

Noting there is no penalty anymore for failing to purchase insurance, justices wondered if someone could challenge a lawn-mowing statute, or one requiring masks to be worn during the current COVID-19 pandemic, if there were no penalty for violations.

Texas Solicitor General Kyle Hawkins responded that the insurance mandate, even without an enforcement mechanism, is more than a friendly suggestion.

“It is the law of the United States of America today that you have to purchase health insurance, and not just any health insurance – health insurance that the federal government has decided would be best for you,” he said.

“They wanted the court to do that, but that’s not our job.” Chief Justice John Roberts on striking down the ACA after Congress repealed the individual mandate