Even with a conservative majority, most justices don’t seem comfortable with the notion that a single aspect of Obamacare could or should invalidate the entire law.
The U.S. Supreme Court appears unlikely to strict down the Affordable Care Act, popularly known as Obamacare.
The challenge to the ACA, says Reuters, was filed by the Trump administration alongside 17 Republican attorneys general.
While the Supreme Court is now controlled by a comfortably conservative majority, the justices appeared skeptical of Republicans’ initial arguments. According to Reuters, neither Chief Justice John Roberts nor Justice Brett Kavanaugh seemed inclined towards the Trump administration’s contention that, if one aspect of Obamacare is found unconstitutional, the entire act must be invalidated.
Of central importance, says Reuters, is the so-called individual mandate.
The individual mandate—which has since been stricken down—required Americans to either health insurance or pay a financial penalty each year they chose to remain uninsured.
When Donald Trump took office in 2017, he signed a law removing the mandate. Republicans have since argued that the individual mandate’s revocation “eliminated the constitutional justification for the provision as permissible under the power of Congress to levy taxes.”
However, Chief Justice Roberts asked why Congress did not simply repeal the entirety of the Affordable Care Act when it eliminated the individual mandate’s penalty.
![Judge Brett Kavanaugh; image by U.S. Court of Appeals for the District of Columbia Circuit [Public domain], via Wikimedia Commons.](https://www.legalreader.com/wp-content/uploads/2018/09/Judge_Brett_Michael_Kavanaugh-300x215.jpg)
Vox.com observes that the lawsuit’s focus on the individual mandate is somewhat strange, precisely for the reason that Congress and President Trump excised it in 2017.
Even though the mandate is no longer active, conservative attorneys general have made an argument centering on the Affordable Care Act’s wording. The first subsection of the individual mandate clause within Obamacare, for instance, says that most individuals “shall” carry insurance; the second states that people who do not carry insurance must pay a penalty; and the third subsection sets the amount for a penalty, which is now zero dollars.
The Trump administration has said that the inclusion of the word “shall” stipulates a legally binding requirement—essentially forcing Americans to purchase health insurance, even if the penalty for refusal is nonexistent.
However, in past Affordable Care Act cases, the Supreme Court found that the lack of any actual legal penalty negates the plaintiffs’ claims of unconstitutionality.
“Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buy health insurance, beyond requiring a payment to the IRS,” Chief Justice Roberts wrote in 2012. “The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.”
Now that payment for noncompliance no longer exists, there is, effectively, no penalty whatsoever for refusing to comply with the ACA’s individual mandate.
Vox.com notes that there is an argument to be made about severability, or the process wherein courts must determine—after part of a law has been found illegal, unconstitutional, or otherwise unusable—what Congress’s intent was in writing legislation or making policy changes.
But severability may not offer much to Republicans, given that Congress—for all conservatives’ talk of eradicating Obamacare in full—managed to accomplish noting else other than the revocation of the individual mandate.
“We ask ourselves,” Roberts said, “whether Congress would want the rest of the law to survive if an unconstitutional provision were severed.”
The fact that Congress left most of the ACA intact in 2017, added Roberts, “seems to be compelling evidence” that Obamacare should not voided outright.
Justice Kavanaugh also opined that “this is a fairly straightforward case for severability under our precedents, meaning that we would excise the [individual] mandate and leave the rest of the act in place.”
Reuters notes that, along with hearing Republicans’ arguments, the Supreme Court also allowed input from a coalition of Democrat-controlled states.
After argument, president-elect Joe Biden condemned the right-wing lawsuit as “simply cruel and needlessly divisive.”
“This argument will determine whether [the] healthcare coverage of more than 20 million Americans who acquired it under the Affordable Care Act will be ripped away in the middle of the nation’s worst pandemic in a century,” Biden said during a press conference.
Biden further promised to expand on the Affordable Care Act after taking office, in a bid to ensure that health care is accessible to more Americans than ever before.
Sources
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS
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