A demonstrator holds a sign in front of the US Supreme Court in Washington, DC, on November 10, 2020, as the high court opened arguments in the long-brewing case over the constitutionality of the 2010 Affordable Care Act, under which then-president Barack Obama’s government sought to extend health insurance to people who could not afford it.
Nicholas Kamm | AFP | Getty Images
The Affordable Care Act seems likely to withstand its third challenge at the Supreme Court.
Several of the court’s conservatives on Tuesday expressed an unwillingness to strike down the landmark legislation during oral arguments in a case brought by red states seeking to eliminate the law.
Chief Justice John Roberts, who cast the key vote in 2012 upholding Obamacare, and Justice Brett Kavanaugh, an appointee of President Donald Trump, both suggested that the court may cast aside a challenged provision of the law, known as the individual mandate, while leaving the rest of it standing.
The individual mandate provision, as enacted in 2010, requires most Americans to obtain health insurance or pay a penalty. The GOP-controlled Congress reduced the penalty to $0 in 2017.
The Supreme Court upheld the mandate in 2012 under Congress’s taxing power, but Texas and other Republican-led states argued that the reduction of the penalty made that justification no longer workable, and as a result the whole Affordable Care Act must be struck down. The Trump administration, via the Department of Justice, argued in favor of the red states’ challenge.
The court’s six conservatives seemed sympathetic to arguments made by Kyle Hawkins, the Texas solicitor general, and acting Justice Department Solicitor General Jeffrey Wall that the individual mandate became unconstitutional when it was stripped of an accompanying penalty.
But Roberts and Kavanaugh suggested that would not doom the rest of the law.
“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate was struck down,” Roberts told Hawkins. Roberts was appointed by President George W. Bush.
Roberts acknowledged that some Republican lawmakers may have wanted the Supreme Court to strike down the law, “but that’s not our job.”
Kavanaugh told Donald Verrilli, who was solicitor general under former President Barack Obama, that “I tend to agree with you that this is a very straightforward case” and that under the court’s precedents “we would excise the mandate and leave the rest of the act in place.”
Later, Kavanaugh told Hawkins that it “sure seems” like Congress in 2017 wanted to lower the individual mandate penalty without getting rid of the Affordable Care Act’s other provisions, such as its protections for those with preexisting conditions.
The court’s three liberals, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan are expected to side with California and a coalition of other Democratic-led states that are defending Obamacare. It takes five votes to gain a majority on the nine-judge panel.
Health-care activists warned that if the Supreme Court struck down the Affordable Care Act, more than 20 million people could lose their insurance. The dispute, which was argued in the shadow of last week’s presidential election, was a central focus of Democrats during the confirmation hearings for Justice Amy Coney Barrett last month.
Two lower courts sided with Texas, including the 5th U.S. Circuit Court of Appeals court, that the individual mandate was unlawful. The appeals court did not say whether the rest of the Affordable Care Act would also have to be struck down.
Arguments, which were scheduled to last for 80 minutes, began at 10 a.m. ET and concluded around noon. They were conducted by phone as a result of the Covid-19 pandemic and streamed live to the public.
A decision is expected toward the end of June.
The case is known as California v. Texas, No. 19-840.
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