The Supreme Court appeared likely Tuesday to uphold the Affordable Care Act for the third time in eight years, even with the Trump administration urging its elimination before an emboldened conservative majority on the nation’s highest court.
After upholding the health care law in 2012 and 2015, the court was faced with a new Republican challenge stemming from Congress’ elimination in 2017 of the penalty imposed on consumers who refuse to buy health insurance. Since the law originally was upheld as a tax, challengers argued it became unconstitutional without one.
But even if the mandate to buy insurance has to be struck down, two key justices indicated that the rest of the 906-page law should be able to survive without it.
One was Chief Justice John Roberts, who has played the leading role in rescuing the health care law in the past. When Congress repealed the tax penalty in 2017, he said it did not try to strike down the entire law.
“They wanted the court to do that, but that’s not our job,” Roberts said.
And Associate Justice Brett Kavanaugh called the dispute “a very straightforward case” pointing toward severing one provision of the law, rather than striking down the whole statute.
“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place, the provisions regarding preexisting conditions and the rest,” he said.
The case is the most consequential one on the court’s 2020 docket, threatening health coverage for more than 20 million people and protections for millions more with preexisting conditions. A ruling is not expected until the middle of next year.
That didn’t prevent President-elect Joe Biden from urging the court to uphold the law against “cruel and needlessly divisive” efforts by what he called “far-right ideologues.”
Speaking in Wilmington, Delaware, less than three hours after the Supreme Court finished hearing the case, Biden promised to address and seek to expand health coverage immediately after taking office in January.
The case comes to the court just as its conservative majority had been bolstered by the confirmation of Associate Justice Amy Coney Barrett. First named to a federal appeals court three years ago, she has replaced liberal Associate Justice Ruth Bader Ginsburg, who died in September.
The fate of the ACA dominated much of Barrett’s confirmation process. Democrats on the Senate Judiciary Committee urged her to recuse herself from the case because she criticized the court’s earlier rulings on the law while a Notre Dame Law School professor.
Barrett refused to make that pledge but said, “I’m not here on a mission to destroy the Affordable Care Act.” And on Tuesday, she participated in the telephonic oral argument.
Broccoli and carrots
Several other cases involving elements of the law have reached the justices over the past eight years. Three of them dealt with Obama administration rules that required employers to offer free coverage of contraceptives as part of a preventive care package. Another focused on billions of dollars owed health insurance companies for the risks taken and losses incurred during the law’s infancy.
The latest challenge stems from the $1.5 trillion tax cut that Republicans in Congress passed and President Donald Trump signed in 2017. Among other provisions, it repealed the law’s tax on consumers who refuse to buy insurance, preferring to wait until they need medical care. The penalty was intended to prod them into the health care marketplace sooner so insurance pools were not dominated by the elderly and sick.
Defenders of the law, led in court Tuesday by California Solicitor General Michael Mongan and former U.S. solicitor general Donald Verrilli, said the law no longer depends on the so-called individual mandate to buy insurance, as Verrilli himself argued before the court in 2012. For that reason, they said, the rest of the law does not have to be scuttled if the mandate is found unconstitutional.
Roberts recalled that during oral argument eight years ago, conservative justices likened a law forcing people to buy insurance to forcing them to buy broccoli.
“It was the key to the whole act,” the chief justice recalled, but now proponents say it’s unnecessary. “We spent all that time talking about broccoli for nothing?”
Employing his own nourishing analogy, Verrilli said Congress in 2010 wanted to ensure that health insurance markets would work, so while expanding health coverage in several ways, they added the mandate to force people to get insured.
“It turns out that the carrots worked without the stick,” he said.
In December 2018, federal District Judge Reed O’Connor ruled that because Roberts originally upheld the law under Congress’ taxing power, it could not survive without any tax. His ruling, which was put on hold while it was appealed, threatened to wipe out the entire law, including subsidies for low-income people, Medicaid expansions in all but a dozen states, coverage for young adults up to age 26, and more.
A panel of the U.S. Court of Appeals for the 5th Circuit agreed, by a 2-1 vote, that the individual mandate is unconstitutional “because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power.” But rather than strike down the entire law, as O’Connor would have done, the panel sent the case back to his court for additional analysis on whether the rest of the mandate could be severed from the statute.