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Another Obamacare Test Looms for Chief Justice John Roberts (1)

March 3, 2020, 9:56 AMUpdated: March 3, 2020, 10:12 PM

The U.S. Supreme Court’s latest challenge to Obamacare is poised to be another test for Chief Justice John Roberts.

The high court agreed Monday to hear an appeal from a group of Democratic states fighting to keep the Affordable Care Act alive after a federal appeals court found one part of it was unconstitutional but left the fate of its remaining provisions uncertain. When the justices review the case, it will be the court’s second time considering the constitutionality of the law. Roberts last rescued the ACA in 2015 when the statute was before the court on a non-constitutional question about subsidies for people below a certain income level.

“He voted to save the law once before,” said Josh Blackman, referring to Roberts’s tie-breaking vote when the act was first before the court. “The question is will he do it again?”

Blackman is an associate professor of law at the South Texas College of Law who supports the litigation challenging the law.

The Third Chapter

The court is being asked in this latest dispute whether the ACA mandate that requires everyone buy insurance is constitutional now that Congress dropped the penalty to zero. The justices will also decide whether the remaining provisions of the law can survive without the mandate.

“It would be strange, I think, for him now to turn around and suddenly decide that the entire law must be struck down when he wasn’t interested in that approach historically,” said Nicole Huberfeld, a health law professor at Boston University School of Law and School of Public Health.

Roberts cast the deciding vote in the court’s 2012 decision in National Federation of Independent Business v. Sebelius. In that case, the court held 5-4 that the ACA’s individual mandate to buy insurance was constitutional under Congress’s taxing power, but ruled it was unconstitutional to force states to expand Medicaid or risk losing their federal funding for the program. Roberts’ decision precluded the federal government from imposing such a sanction, but explicitly said no other provision of the law needed to be struck down.

Robert also wrote the court’s 2015 ruling in King v. Burwell upholding the federal tax subsidies for individuals in states who purchase their insurance on the federal health-care exchange. In that ruling he was joined by then Justice Anthony Kennedy for a 6-3 decision.

Had that case gone the other way, it could have been damaging to the regulatory scheme for Obamacare, said Robert Henneke, general counsel at the Texas Public Policy Foundation, who’s representing the two citizens who brought the latest challenge to the ACA alongside a group of mostly Republican states.

Roberts has been the pivotal voter in the previous Obamacare cases, and Henneke said he sees this case as the “third chapter in the trilogy.”

“I would expect him to have a similar influence in this case,” he said, but he doesn’t think there’s any way for Roberts to uphold the mandate to buy insurance.

“He’s bound by his own words,” he said, referring to Robert’s ruling in 2012.

In NFIB v. Sebelius, Roberts said “the individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” but it can survive under “Congress’s power to tax.”

More Than Five?

Even if Roberts decides the mandate is unconstitutional, he could still side with the four liberal justices in ruling it can be severed from the rest of the law. “Severability” is the legal concept that parts of a law can be scrapped without junking an entire statute.

If Roberts sides with severability, he might even get another member of the court’s conservative wing to join him. “I’m not sure he’ll be alone,” said Timothy Jost, emeritus professor at Washington and Lee University. “Justice Kavanaugh has raised some questions about severability before.”

Before he was confirmed to the high court, Justice Brett Kavanaugh called the severability doctrine a “mess” and questioned “how a court can know what Congress would have wanted, characterizing this inquiry as an ‘inherently suspect exercise,’” according to a 2018 Congressional Research Service report on his jurisprudence and potential impact on the court.

“The nominee suggested instead that ‘courts might institute a new default rule: sever an offending provision from the statute to the narrowest extent possible unless Congress has indicated otherwise in the text of the statute,’” the report said.

During Supreme Court arguments Tuesday in separate dispute over the structure of the Consumer Financial Protection Bureau, Kavanaugh asked if the court would be rewriting the Dodd-Frank Wall Street Reform and Consumer Protection Act by ignoring its severability clause. Like the Obamacare case, the fight over the CFPB asks if one unconstitutional provision junks an entire law.

There are differences, however. The Dodd-Frank statute includes a clause that explicitly states that if a portion of the law is held unconstitutional, the remainder “shall not be affected.” With the ACA, Texas and the states challenging the law argue it actually has an “inseverability clause” because the statute calls the mandate “essential.”

Health scholars note the response to this case has been unusual in that even members of the conservative legal establishment told the appeals court in friend-of-the-court briefs that the federal district court in Texas was wrong to strike down the law entirely.

Right to Amend

“It’s really important to paint this case not just as another Obamacare challenge, but a statutory interpretation case that implicates Congress’s right to amend its own laws as it wishes and that has a long and stable doctrinal history in the Supreme Court,” said Abbe Gluck, a professor at Yale Law School.

“All those factors together hopefully will make for an opinion that is not just 5-4.”

It would be an unprecedented level of judicial overreach to wipe the entire ACA off the books just because the 2017 Congress removed the tax penalty, Gluck said, noting the same group of lawmakers “tried and failed to repeal the Affordable Care Act.”

“That should drive home the significance of the case for legislative supremacy, separation of powers, and the rule of law,” she said.

(Updated in the 18th and 19th paragraphs with comment from Justice Brett Kavanaugh during Tuesday's oral argument on a different case. An earlier version corrected an attribution to Josh Blackman.)

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com

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