Bloomberg Law
Nov. 10, 2020, 7:24 PM

Kavanaugh, Roberts Signal Inclination to Keep Obamacare Alive

Lydia Wheeler
Lydia Wheeler
Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson
Greg Stohr
Greg Stohr
Bloomberg News

Two key U.S. Supreme Court justices indicated they are inclined to uphold the bulk of the Affordable Care Act as the court weighed the fate of a landmark law that provides health-insurance to 20 million people.

Chief Justice John Roberts and Justice Brett Kavanaugh both suggested during oral arguments Tuesday that they won’t vote to strike down the entire law even if the court invalidates a provision that requires people to acquire insurance. A key question is whether the court would “sever” that so-called individual mandate so that the rest of the law remains intact.

“I tend to agree with you that it’s a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place,” Kavanaugh told a lawyer defending the law on behalf of the House of Representatives.

President Donald Trump’s administration is joining Republican-led states in challenging the law, known as Obamacare, which the GOP has been trying to wipe out since it was enacted in 2010.

The mandate originally carried a tax penalty for noncompliance, a provision that was central to a 2012 Supreme Court ruling that upheld the law. A Republican-controlled Congress zeroed-out the tax in 2017, and opponents now say the whole ACA must be invalidated.

Roberts, who wrote the 2012 ruling, signaled he disagreed.

“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 zero did not even try to repeal the rest of the act,” Roberts said.

Read More: Obamacare Stakes Rise at High Court as Election Dooms Easy Fix

With health care accounting for a sixth of the U.S. economy, the stakes are massive. Advocates for patients, doctors, hospitals and insurance companies are urging the court to uphold the law, warning of chaos should the measure be invalidated in the midst of a pandemic. A ruling is likely by June.

The ACA, signed into law by President Barack Obama, expanded the Medicaid program for the poor, provided consumers with subsidies, created marketplaces to shop for insurance policies, required insurers to cover people with pre-existing conditions, and let children stay on their parents’ policies until age 26.

Sweeping Law

Republicans are banking on the Supreme Court’s 6-3 conservative majority, including new Justice Amy Coney Barrett and fellow Trump appointees Kavanaugh and Neil Gorsuch.

The Trump-appointed justices suggested they were inclined to invalidate the mandate now that it no longer carries a tax penalty. Gorsuch said Roberts’s 2012 opinion was premised on the notion that the tax penalty would produce revenue. “That seems to have withered away,” Gorsuch said.

In a separate part of the 2012 opinion, Roberts said the mandate couldn’t be justified as an exercise of Congress’s power to regulate interstate commerce.

Barrett questioned California Solicitor General Michael Mongan’s contention that the mandate is now an “inoperative provision” that doesn’t bind anyone.

“You are asking us to treat it as if it functionally has been repealed, but that’s not what Congress did,” Barrett said. “Does that matter?”

Donald Verrilli, the lawyer representing the House, said opponents “are asking this court to do what Congress refused to do when it voted down repeal of the ACA in 2017.” Verrilli successfully defended the law twice when he served as Obama’s solicitor general.

Acting U.S. Solicitor General Jeffrey Wall, the Trump administration’s top Supreme Court lawyer, urged the court to declare the entire law invalid. He said Congress “left standing the finding that that mandate is essential to the operation of other parts of the act.”

Read more: How Obamacare, Wounded and Hounded, Is Still Alive: QuickTake

Roberts and Kavanaugh

But Roberts said Wall’s position would “dramatically” expand the ability of people to challenge parts of federal statutes by saying they are injured by a different provision.

“Just in this act alone you’re talking about almost 1,000 pages and you’re letting somebody not injured by the provision that needs challenging sort of roam around through those 1,000 pages and pick out whichever ones he wants to attack,” Roberts said.

Roberts has twice voted to uphold core parts of the law, in 2012 and in a 2015 ruling that backed crucial tax credits in the law. Three liberal justices who joined him in those majorities -- Stephen Breyer, Sonia Sotomayor and Elena Kagan -- are still on the court and indicated Tuesday they would again vote to uphold the law.

Democrat Joe Biden’s defeat of Trump in the presidential race means Congress could override any ruling invalidating the law. But its willingness to do so could depend on two Jan. 5 Georgia runoffs that will determine whether Democrats take the control of the Senate. After last week’s election the Senate stands at 48-48, with Republicans leading as-yet uncalled races in North Carolina and Alaska.

The law became more vulnerable when Barrett replaced the late Justice Ruth Bader Ginsburg, who was one of two justices to back every aspect of the law in 2012. Ginsburg’s death on Sept. 18 meant the court no longer had all five justices who voted to uphold the individual mandate in 2012.

The early questioning Tuesday centered on contentions that opponents lack the legal right to challenge even the individual mandate. Defenders of the law say those people aren’t injured because they don’t have to pay a penalty if they lack insurance.

That contention drew pushback from Justice Clarence Thomas, who likened the law to a requirement that people wear masks because of Covid-19. Thomas said that even if no penalty were attached, people would suffer “opprobrium” for not complying.

“Would they have standing to challenge the mandate to wear a mask?” Thomas asked.

The case is California v. Texas, 19-840.

(Updates to add questions from justices, starting with Gorsuch in 11th paragraph.)

To contact the reporters on this story:
Greg Stohr in Washington at;
Lydia Wheeler in Arlington at;
Kimberly Robinson in Arlington at

To contact the editors responsible for this story:
Jon Morgan at

Elizabeth Wasserman, Kathleen Hunter

© 2020 Bloomberg L.P. All rights reserved. Used with permission.