Kavanaugh, Roberts Signal Openness to Keeping Obamacare Alive

Two key conservative 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 they aren’t prepared to strike down Obamacare entirely even if Republican challengers succeed in invalidating the individual mandate, which requires people to acquire insurance

“I tend to agree with you this 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, 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 2010 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, suggested he disagreed.

“I think it’s hard for you to argue Congress intended the entire act to fall if the mandate was struck down if the same Congress that lowered the tax penalty to zero did not even try to repeal the rest of the act,” Roberts said.

Donald Verrilli, the lawyer representing the House, said opponents were “asking this court to do what Congress refused to do when it voted down repeal of the ACA in 2017.”

With health care accounting for a sixth of the U.S. economy, the stakes are massive. The challenge jeopardizes the health care of more than 135 million Americans with pre-existing conditions, including those who have had COVID-19, according to estimates from the liberal Center for American Progress.

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.

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.

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

The early questioning centered on contentions that opponents lack the legal right to challenge law’s requirement that people acquire insurance. 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. Justice Clarence Thomas 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 that person have standing to challenge the mandate to wear a mask?” Thomas asked.

Barrett asked what the court should make of the fact that the 2017 Congress dropped the penalty to $0 instead of repealing the individual mandate.

“You are asking us to treat it as if it has functionally been repealed. Does that matter?” she asked.

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.

The Affordable Care Act, signed into law by President Barack Obama, was a sweeping health-care overhaul. It 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.

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 case is California v. Texas, 19-840.

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