The US Supreme Court on Tuesday grappled with whether all of Obamacare should be thrown out in a challenge by the Republican-governed states, backed by President Donald Trump’s administration, with two conservative justices suggesting the law should remain intact even if one provision is struck down.
The justices heard about two hours of arguments by teleconference in an appeal by a coalition of the Democratic-governed states including California and New York and the Democratic-led House of Representatives to preserve the Affordable Care Act (ACA), as Obamacare is formally known.
Chief Justice John Roberts and fellow conservative Brett Kavanaugh both asked questions that suggested they were sceptical of Republican arguments that all of Obamacare must fall even if one provision, known as the individual mandate, is found to be unconstitutional. That provision required people to obtain insurance or pay a financial penalty.
“It’s hard for you to argue that Congress intended the entire Act to fall if the mandate was struck down,” Roberts said, noting that Congress did not repeal the entire law in 2017 when it eliminated the financial penalty under the individual mandate.
Roberts and Kavanaugh appeared to agree that the mandate to buy insurance can be severed from the rest of the law.
“We ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed,” Roberts said, noting that Congress in 2017 chose to leave the rest of the law intact. “That seems to be compelling evidence,” Roberts added.
Kavanaugh said, “This is a fairly straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”
If Roberts and Kavanaugh in the court’s eventual ruling, due by the end of June, join with the court’s three liberal justices, it likely would be enough to keep the vast majority of the law intact.
Texas and the other Republican-governed states, later joined by Trump’s administration, sued in 2018 to strike down the law.
The justices – conservatives and liberals alike – also raised questions over whether the Republican challengers, led by the state of Texas, had the proper legal standing to bring the legal challenge, describing similar scenarios in which someone might be able to file suit over a government mandate even if no penalty exists.
The case represents the latest Republican legal attack on the 2010 law, which was the signature domestic policy achievement of Democratic former President Barack Obama, under whom Biden served as vice president. The Supreme Court in 2012 and 2015 fended off previous Republican challenges to it.
President-elect Joe Biden has criticised Republican efforts to throw out the ACA in the midst of a deadly coronavirus pandemic and hopes to buttress Obamacare after taking office on January 20, 2021.
“Obamacare is a law that every American should be proud of,” he said during a speech in Wilmington, Delaware on Tuesday, “It’s why people with preexisting conditions are protected this country, it’s a law that delivers vital coverage,” he said.
“So this effort to bypass the will of the American people,” he added, “the verdict of the courts and past the judgments of Congress, in my view, is simply cruel and needlessly divisive, regardless of the outcome of this case.”
The Supreme Court has a 6-3 conservative majority after the Republican-led Senate last month confirmed Trump’s third appointee, Amy Coney Barrett. Most legal experts think the justices will stop short of a seismic ruling striking down Obamacare.
If Obamacare were to be struck down, up to 20 million Americans could lose medical insurance and insurers could once again refuse to cover people with pre-existing medical conditions. Obamacare expanded public healthcare programmes and created marketplaces for private insurance.
Texas-based US District Court Judge Reed O’Connor in 2018 ruled that Obamacare was unconstitutional as currently structured in the light of a Republican-backed change made by Congress a year earlier.
The New Orleans-based 5th US Circuit Court of Appeals last year partially upheld that ruling, saying the law’s individual mandate ran afoul of the constitution. But the 5th Circuit stopped short of striking down the law. The Democratic-led states and the House then appealed to the Supreme Court.
The 2012 Supreme Court ruling upheld most Obamacare provisions, including the individual mandate. The court defined this penalty as a tax and thus found the law permissible under the constitution’s provision empowering Congress to levy taxes.
In 2017, Trump signed the measure that eliminated the financial penalty under the individual mandate, which gave rise to the Republican lawsuit. With that change, the individual mandate could no longer be interpreted as a tax provision and was therefore unlawful, the Republican challengers argued.
Liberal justices Sonia Sotomayor and Elena Kagan asked questions examining the Texas arguments concerning the individual mandate. Kagan noted that 2017 change made the mandate “less coercive” by saying that Americans were not required to obtain insurance if they chose to pay the tax penalty instead. “So how can it be an unconstitutional command?” Kagan asked.
Donald Verrelli, the lawyer representing the House, told the justices that the Republican challengers were “asking this court to do what Congress refused to do when it voted down repeal of the ACA in 2017. But their argument is untenable.”
“The Affordable Care Act has been the law of the land for 10 years,” Verrelli added. “The healthcare sector has reshaped itself on reliance on the law. Tens of millions of Americans rely on it for health insurance that they previously could not afford and more rely on the law for its protections and benefits.”
Michael Mongan, California’s solicitor general, told the justices, “What Congress did here was to create an inoperative provision. It doesn’t require anybody to do anything.”