WASHINGTON — The Supreme Court appears likely to uphold the Affordable Care Act after Justices John Roberts and Brett Kavanaugh bluntly criticized the logic underpinning a Republican lawsuit against it Tuesday during oral arguments.
Roberts and Kavanaugh seemed to clearly side with the court’s liberal wing of Sonia Sotomayor, Elena Kagan, and Stephen Breyer in rejecting the idea that the ACA should be declared unconstitutional as a whole. Other conservative justices were less direct but also expressed skepticism.
Kavanaugh said there is “fairly clear” precedent that even if Republicans prevail on more narrow points, the overall law should be left intact. Roberts, who wrote the 2012 opinion upholding Obamacare, said some members of Congress may have hoped the courts would repeal the law but “that’s not our job.”
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Republican states, led by Texas and joined by the Trump White House, argued that Congress unintentionally made the ACA unconstitutional in 2017 when it made changes to the law. Repealing the ACA, also widely known as Obamacare, would strip 20 million people of health insurance and end the ban on discriminating against people with preexisting conditions.
The lawsuit had been winding its way through the court for years and is the first major case being heard since Republicans took a solid 6–3 majority on the court. But even new Supreme Court Justice Amy Coney Barrett gave Republican lawyers a rough ride, questioning their argument that the court should disregard the will of Congress.
The Republican lawsuit rested on the novel theory that if one clause of the ACA is unconstitutional then the entire 900-page law must be thrown out as well.
In 2017, Republicans in Congress announced that they would “repeal” the individual mandate penalty for people who can afford to buy health insurance but choose not to. They did not strike the mandate from the books but instead set the penalty at $0.
Texas argued this made the mandate unconstitutional. A prior Supreme Court ruling from 2012 found that the government did not have the power to compel people to buy insurance but did have the power to tax people who choose not to. Texas argued a penalty of $0 is no longer a tax, and thus is no longer constitutional under Congress’s taxation powers.
On its own, this question has no real-world implications. But Texas argued that the mandate is an essential part of the ACA, and if it is thrown out, then the entire law must be torn down.
Supreme Court justices did not take a positive view of that theory.
“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down, when the same Congress that lowered the penalty to $0 did not even try to repeal the rest of the act,” said Roberts. “I think, frankly, that they wanted the court to do that, but that’s not our job.”
Republican lawyers seemed to have possibly won some justices over to the idea that the individual mandate itself is now unconstitutional. But justices pushed back against the notion that the entire law should then be tossed out.
“It does seem fairly clear that the proper remedy would be to sever the mandate and leave the rest of the act in place,” said Kavanaugh.
Kagan warned that adopting the philosophy proposed by Republicans would open the door to broad pieces of legislation getting thrown out because one single element is overturned. “Isn’t that something that the United States should be very worried about? And isn’t it something that really cuts against all of our doctrine?” she said.
Lawyers from Texas and the White House argued that this lawsuit is based on a particular set of circumstances and is not likely to affect other cases. The Republican case rests on arguments by the Obama administration that the individual mandate was essential to the viability of the overall bill. At the time, the Obama administration believed a mandate was necessary so that people would not only wait until they were sick to buy health insurance.
It turned out, they were wrong. Subsidies ended up incentivizing people to join the markets and the mandate was widely seen as ineffective and unnecessary when it was repealed. The Obamacare markets have not collapsed since then.
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But Republican lawyers argued the original interpretation of the mandate as essential should still stand because it was never repealed. They conceded that Congress in 2017 may not have intended to throw out provisions like preexisting condition protections, but argued that the court should look at the original text of the law, not “playing the game” of guessing what Congress intended in 2017.
Even conservative justices expressed skepticism at this. Barrett said it would be “odd” for the court to assume that Congress intentionally made a law unconstitutional.
Justice Samuel Alito asked how the court could justify declaring the individual mandate as essential when it hasn’t even been in effect for two years. He said in the early days of the ACA “there was strong reason to believe that the individual mandate was like a part in an airplane that was essential to keep the plane flying … but now the part has been taken out and the plane has not crashed.”
The substance of the lawsuit may become moot because the Supreme Court is also weighing whether or not the Republican states have standing to launch the lawsuit to begin with. Democratic lawyers questioned what injury is being suffered by the states since the individual mandate was set to $0 that allows them to sue.
Texas solicitor general Kyle Hawkins argued that the states suffer an injury because mandating people to sign up for health care will encourage them to do so, even if there is no penalty. He said this will cause more people to sign up for Medicaid and increase costs to the states. Hawkins also argued the mandate puts administrative costs on the state as an employer, which constitutes “a pocketbook injury” because “those forms don’t produce themselves.”
Sotomayor questioned whether anyone who did not buy insurance when there was a tax penalty would do so because of the direction of the individual mandate when there is no penalty. “At some point it seems common sense would say to me, ‘huh?’”
Kagan also criticized the Republican arguments on standing, telling acting US Solicitor General Jeffrey Wall “you’re coming in here with a theory which, to my mind, threatens to kind of explode standing doctrine.”