A more conservative Supreme Court appears reluctant to do what Republicans have long wanted: kill the Affordable Care Act, including its most important protection for existing health conditions and subsidized insurance premiums that affect tens of millions of Americans.
Remote meetings a week after the election and amid a pandemic that has closed their majestic courtroom, judges on Tuesday took on the latest Republican challenge to the Obama-era care law, with three appointed by President Donald Trump, a promised law enemy, among them.
But at least one of those Trump nominees, Justice Brett Kavanaugh, seemed likely to vote to leave the bulk of the law intact, even if he found the law’s now toothless mandate that everyone should have health insurance to be unconstitutional.
“It seems pretty clear that the right remedy would be to break the mandate provision and leave the rest of the document in place,” Kavanaugh said.
Chief Justice John Roberts, who wrote two previous statements to uphold the law, expressed similar views, and the court’s three liberal judges are almost certain to vote to uphold the law in its entirety. It would probably form a majority by agreeing to a decision to simply cut the mandate, which now has no financial sanction. Congress zeroed the penalty in 2017, but left the rest of the law untouched.
“I think it’s hard for you to argue that Congress intended the whole act to fall if the mandate was struck when the same Congress that reduced the sentence to zero did not even try to repeal the rest of the act. I honestly think they wanted the court to do that, but that’s not our job, Roberts says.
In the court’s third major case of the 10-year law, popularly known as “Obamacare,” Republican Attorneys General in 18 states and the administration want the entire law abolished. It would threaten the coverage of more than 23 million people as well as millions of others with pre-existing conditions that would now include COVID-19.
California, which leads a group of democratically controlled states, and the democratically controlled US House of Representatives are urging the court to leave the law in place.
The Supreme Court could have heard the case before the election, but set aside arguments for a week after. The timing could add to the wrinkling of the case as President-elect Joe Biden strongly supports the care law.
Speaking after the arguments, Biden called the Republican-backed challenge to the law “cruel and unnecessarily divisive” and promised to implement reforms to extend coverage when he sits next January, regardless of the Supreme Court ruling.
Biden: Americans who are more united than divided in health care
Tuesday’s argument, which was carried out by telephone and lasted for two hours, reached back to previous cases and also included reminders of the coronavirus pandemic. The courts asked for other mandates, only hypothetical, which may have had no penalties: to carry a flag, to mow the lawn or even in a nod to the present times to wear a mask.
“I guess in most places there is no penalty for wearing a face mask or a mask under COVID, but there is some degree of distortion if you do not wear it in certain settings,” said Justice Clarence Thomas.
The court also spent a lot of time discussing whether the GOP-led states and several people who originally filed lawsuits had the right to go to court.
The costs are against the federal government and US authorities, “but it does not seem that Congress is the one who has harmed the individual complainants here and you can not sue Congress and say: ‘Hello, you have put us under this mandate that forces us to buy insurance and that hurts us, right? “Justice Amy Coney Barrett told Texas solicitor General Kyle Hawkins.
A decision that these parties do not have that right, so-called legal status, would lead to the case being rejected and leaving the entire law, including the mandate.
Questions from Barrett, who joined the court at the end of last month after her hasty nomination and confirmation to replace the late Justice Ruth Bader Ginsburg, did not point to a clear result. Trump’s second highest court judge is Justice Neil Gorsuch.
The three appointed Trump members have never decided on the content of the Health Care Act. However, Barrett has been critical of the court’s previous major health care decisions that uphold the law, both written by Roberts.
The current case stems from a change made by the Republican-controlled Congress in 2017 that reduced the penalty for not getting health insurance to zero. Without the sanction, the law’s mandate to have health insurance is unconstitutional, according to GOP-led states.
If the mandate goes, they say, the rest of the law should go with it because the mandate was central to the law’s passage.
However, registration in the law’s insurance markets has remained relatively stable at more than 11 million people, even after the penalty expired in 2019. According to the non-partisan Kaiser Family Foundation, registration decreased by about 300,000 people from 2018 to 2019. Kaiser estimates that 11 , 4 million people have coverage this year.
Another 12 million people are covered by the law’s Medicaid expansion.
If the case turns against the legal doctrine of separability, it would be in line with other rulings in recent years, where judges have removed a problematic provision from a law and allowed the rest to remain in force.
In the first major ACA case in 2012, justices Samuel Alito and Thomas voted to overthrow the entire team. Roberts and Justice Stephen Breyer, Elena Kagan and Sonia Sotomayor voted to uphold it.
Roberts has endured a stream of conservative criticism, including from Trump, of his previous views, including the original 2012 case that upheld the mandate.
“Eight years ago, the law’s defenders stressed that the mandate was the foundation of the entire law,” Roberts told Donald Verrilli, who represented the House on Tuesday but was the Obama administration’s highest court attorney in 2012. “But now the representation is that, ‘Oh no, everything is good without it. ‘ Why graze and change? Asked Roberts.
The law originally had subsidies and other carrots to entice people to sign up for health insurance, as well as a stick, the penalty, Verrilli said. “It turned out that the carrots work without a stick,” he said.
A limited decision would have little real consequence. The case could also be made irrelevant if the new Congress were to restore a modest penalty for not buying health insurance.
The arguments were not without their lighter moments, especially in an exchange between Breyer and Jeffrey Wall, Trump’s Supreme Court Attorney, about whether the mandate that Americans “should” have insurance matters now that the sentence is gone.
Breyer said that “should” be used in many homes as a serious request, not as a threat.
“In my family, when I tell my children to do things, it’s a command supported by a punishment,” Wall said.
Breyer replied, “It’s a much more organized family than mine.”