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Gorsuch, Thomas Look Lonely on Whether to Strike Obamacare (4)

July 6, 2020, 2:11 PMUpdated: July 6, 2020, 11:06 PM

Justices Clarence Thomas and Neil Gorsuch appear to be in the minority among court conservatives open to sinking an entire law when rejecting a piece of it if a Monday decision is any guide, as the Supreme Court prepares to take up another challenge to the Affordable Care Act next term.

A coalition of Republican-controlled states argues that amendments to the healthcare law in 2017 effectively eliminated the “individual mandate,” requiring healthcare coverage. The Justice Department under President Donald Trump isn’t defending the law, saying the “entire ACA thus must fall.”

Gorsuch and Thomas signaled that they agree in an unrelated ruling on a federal anti-robocall law.

If “this is what modern ‘severability doctrine’ has become, it seems to me all the more reason to reconsider our course,” wrote Gorsuch, in part of the opinion that Thomas joined on Monday.

But in a term that’s been disappointing for conservatives, the fact that Chief Justice John Roberts and conservative Justices Samuel Alito and Brett Kavanaugh didn’t agree could spell bad news ahead next term, too, when the latest challenge to Obamacare led by Texas is heard.

“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Kavanaugh wrote Monday in the lead decision in the case regarding the Telephone Consumer Protection Act of 1991.

Roberts, Alito, and Kavanaugh “have doubled down on a narrow ‘traditional’ approach to severability that would counsel taking out as little as possible,” said Case Western law professor Jonathan Adler, who filed an amicus brief urging the justices not to strike down the entire ACA.

Kavanaugh’s ‘gotcha’ “is almost tailor-made for the Texas ACA case,” Adler said.

CFPB Decision Magnified

The justices nixed a 2015 amendment to the law, saying it violates free speech. Their ruling stopped short of scrapping the entire measure in a blow to political groups, retailers, banks and other businesses that wanted it erased so they can call and text consumers without risking expensive litigation.

“It’s clear that the plurality on the court wants to use this case to try to drive home a very strong severability presumption,” Mark Taticchi, a partner at Faegre Drinker Biddle & Reath LLP, said.

Seven justices agreed with that limited ruling. But Gorsuch and Thomas didn’t.

Gorsuch wrote that he was doubtful of the high court’s “authority to rewrite the law” in the way the majority wanted. That echoed comments made by Thomas that Gorsuch joined in an earlier case this term that invalidated a portion of the Dodd-Frank Act, but left the Consumer Financial Protection Bureau otherwise intact.

It’s possible the robocall case indicates that Gorsuch and Thomas could be inching closer to voting against Obamacare.

Adler didn’t think you could read too much overall into Gorsuch and Thomas in the robocall decision. They thought that the remedy provided nothing to the plaintiffs who had just won the case, he said, and avoided deciding the severability question.

The justices are being asked in the Obamacare case if the provision in the health law requiring everyone to buy insurance is unconstitutional, and whether the law can survive without it if it is.

The Affordable care Act doesn’t have an express severability clause, which may ultimately hurt its chances of survival.

According to the robocall ruling, the court works on a presumption that the unconstitutional provision can be severed from the law.

That presumption allows the court to “avoid judicial policymaking or de facto judicial legislation in determining just how much of the remainder of a statute should be invalidated,” Kavanaugh said on Monday.

-With assistance from Jon Reid

The case decided Monday is Barr v. AACP, U.S., No. 19-631, 7/6/20.

(Updates with additional comments by Jonathan Adler.)

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloombergindustry.com; Lydia Wheeler in Washington at lwheeler@bloombergindustry.com

To contact the editors: Seth Stern at sstern@bloombergindustry.com; John Crawley at jcrawley@bloombergindustry.com

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