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.
“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.
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.
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
Republicans are banking on the Supreme Court’s 6-3 conservative majority, including new Justice
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
“You are asking us to treat it as if it functionally has been repealed, but that’s not what Congress did,” Barrett said.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?”
Acting U.S. Solicitor General
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
The law became more vulnerable when Barrett replaced the late Justice
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
“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:
To contact the editors responsible for this story:
Elizabeth Wasserman, Kathleen Hunter
© 2020 Bloomberg L.P. All rights reserved. Used with permission.