Supreme Court Signals Obamacare Will Stand

With a new 6-3 conservative majority, the Supreme Court on Tuesday considered the fate of the Affordable Care Act for the third time since the health care law was enacted in 2010. But two conservative justices, including Chief Justice John Roberts, indicated that they were unlikely to scrap the entire law even if the individual mandate is deemed unconstitutional.

During two hours of oral arguments in the landmark case, the justices, including newly installed Justice Amy Coney Barrett, weighed the constitutionality of the individual mandate – the requirement that people purchase health insurance or pay a penalty that Congress zeroed it out in 2017. Republican attorneys general, supported by the Trump administration, believe the mandate should be struck down and because it was once seen as a critical part of the law, the rest of the ACA cannot stand and should be entirely invalidated.

Democratic-led states and an attorney for the U.S. House, meanwhile, argued that Congress "made a single surgical change" when reducing the penalty to zero while the rest of the law's provisions were kept intact. California Solicitor General Michael Mongan asked the court not to "tear down" the law and asserted that there is a "strong presumption in favor of severability," meaning that a provision like the mandate can be removed from the law and the rest of the statute could still stand on its own.

The prospect that the entire Affordable Care Act could fall would have massive implications for the more than 20 million Americans who receive health care through the exchanges, especially during an ongoing pandemic. The case was the major theme of Barrett's confirmation hearings last month as Democrats raised fears that her installation on the Supreme Court would threaten the law and protections for those with pre-existing conditions. Barrett, who has criticized past rulings on the ACA, said at those hearings that she would keep an open mind when it comes before the court and argued that she didn't have an "agenda."

But if Roberts and Justice Brett Kavanaugh join the court's three liberal justices, there would be a majority to uphold most of the Affordable Care Act – even if the individual mandate is struck down.

While most conservative justices appeared to indicate that the Republican challengers had standing to bring the lawsuit before the high court, Roberts and Kavanaugh questioned Texas Solicitor General Kyle Hawkins on the issue of severability. The two justices appeared skeptical over his argument that the individual mandate is "inseverable" and therefore every other provision in the law, like protections for pre-existing conditions and the ability for young adults to stay on their parents health insurance until the age of 26, should fall.

Without specifically addressing the constitutionality of the individual mandate, Kavanaugh said there is a "very straightforward case" for severability under the court's precedents.

"It does seem fairly clear the proper remedy would be to sever the mandate and leave the rest of the act in place. Question to you: how do you get around those precedents on severability which seem on point here?" Kavanaugh asked Hawkins.

Roberts, who penned the majority opinion in the 2012 decision about the law's constitutionality, questioned Hawkins about the intentions of Congress in 2017 when it passed the GOP tax cuts, which removed the penalty portion of the individual mandate. The chief justice pointed out that while the legislative body zeroed out the mandate, it didn't repeal the entire law.

"I think it's hard for you to argue that Congress intended the entire act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act," Roberts said to Hawkins. "I think frankly, they wanted the court to do that. But that's not our job."

In past rulings, including a recent one regarding the federal ban on robocalls, Roberts and Kavanaugh have shown a willingness to uphold a law even when parts of it have been removed. Legal experts have said that justices tend to err on the side of severability when possible to keep Congress' work largely in place. Barrett had a similar definition at her confirmation hearing, saying severability "is designed to say well, would Congress still want the statute to stand, even with this provision gone?"

But the consolidated case, California v. Texas, is the first time the Affordable Care Act faces a court with an even stronger conservative tilt.

Justice Samuel Alito, who has previously ruled against the ACA, said it was difficult to determine the intent of Congress since some lawmakers may have voted to zero out the mandate with the larger intention of gutting the entire law.

Barrett questioned Mongan, the California solicitor general, and Donald Verrilli, the attorney for the U.S. House, about the burden the zeroed out mandate still places on states and individuals. She also raised a question about whether the mandate is still considered a tax since it no longer raises revenue.

Another dominant debate at Tuesday's arguments was over the importance of the individual mandate as it relates to the entire functionality and operation of the law. Hawkins and Jeffrey Wall, the acting U.S. solicitor general, argued that the mandate is an "essential" part of the law and that Congress made that clear when the law passed in 2010.

Roberts and Justice Clarence Thomas questioned Verrilli about his past argument that the individual mandate was central in order for the entire ACA to function. Republican challengers have argued that the mandate is such a key part of the law that if it's rendered unconstitutional, the rest of the provisions couldn't stand and therefore it should undo the entire law.

"When this case came up some years ago, this provision was the heart and soul of the Affordable Care Act," Thomas said. "I know the assessment has changed, but the provision hasn't changed except for the penalty."

Verrilli responded that Congress made a "predictive judgment" about the individual mandate at the time of enactment, but argued that they learned that the law operates regardless and the markets remained stable even without a functional mandate, citing a 2017 assessment from the nonpartisan Congressional Budget Office.

"Congress asked the CBO what would happen if they zeroed out the tax," Verrilli responded to Thomas. "The CBO came back and said the effect on the market would be the same either way. That's the context in which Congress acted."

With the high-profile nature of the case, it's unlikely the justices will issue a ruling until next spring or summer.