Supreme Court Justice Brett Kavanaugh’s Vote May Save Obamacare This Time

One of the strongest signs that the Affordable Care Act will survive the latest attempt to kill it in the Supreme Court came on Tuesday, in oral arguments in California v. Texas, when Justice Brett Kavanaugh began questioning Kyle Hawkins, the solicitor general of Texas. Hawkins was arguing that a decision by Congress, in 2017, to set the tax penalty for Americans who had failed to secure health insurance—the “individual mandate”—at zero dollars not only rendered the mandate unconstitutional but meant that all of Obamacare, as the A.C.A. is also known, from its protections for people with preëxisting conditions and its expansion of Medicaid to its nutrition-labelling and medical-records guidelines, is also unconstitutional. One provision, Hawkins’s argument went, had poisoned it all—it had to go. The name for such a toss-it-all principle, in constitutional-law parlance, is “inseverability,” and the uncertainty that comes with it is a reason that the Court has long expressed a preference, when possible, for “severability,” which means just lopping off the bad parts of a law. And, even though Kavanaugh was appointed by a President who promised to kill Obamacare, and is himself part of the Court’s conservative bloc, he appears not to have forgotten that.

“Looking at our severability precedents, 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 preëxisting conditions and the rest,” Kavanaugh said. (He wrote one of those precedents, Barr v. A.A.P.C., which was decided earlier this year.) “So the question for you, obviously, is: How do you get around those precedents on severability, which seem on point here?”

Hawkins began talking about how, when the A.C.A. was passed, in 2010, Congress had included a finding that the individual mandate was essential to the bill’s larger vision of how the health-care market would operate. Kavanaugh cut him off. “I’m sorry to interrupt,” he said, not sounding very sorry. “But inseverability clauses are usually very clear.” (He was referring to clauses in legislation telling judges what parts of a law Congress thought could not survive if other parts were struck down.) Kavanaugh continued, “You know, Congress knows how to write an inseverability clause. And that”—he paused for a long moment—“is not the language that they chose here.” He added, “I’m having trouble seeing that as the equivalent of an inseverability clause.”

Those last words, despite their technical character, were worth the wait. California v. Texas is a case that is an attempt to kill Obamacare; indeed, a lower-court judge who heard the case threw out the entire statute, though that ruling was stayed. Texas and nineteen other states had initially sued the federal government (two states later withdrew from the case), but the Trump Administration refused to defend the law; California and other states, and lawyers for the House of Representatives, were allowed to step in and advocate for it. What might, on the surface, seem the central question—whether the individual mandate is constitutional—is not, in practical terms, the most consequential one. Back in 2012, when the A.C.A. faced its first major test before the Court, its survival did seem to ride on the mandate, owing to fears that, without it, healthy people would not buy insurance and the “pool” of patients who did would be so unhealthy as to be an impossible burden on insurance companies, which were no longer able to impose lifetime caps or to capriciously deny coverage. It was an enormous relief when, that year, Chief Justice John Roberts joined Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan in upholding the mandate. His rationale then was that, even though Congress could not force people to buy insurance, it could impose a tax on them if they did not buy it—a fine distinction—and the mandate, defined as a tax, was thus constitutional.

A couple of things have happened since then. The mandate turned out to be less important than expected. Roberts expressed some wonder at that turn of events on Tuesday when, in a vegetable-reference-laden section of the arguments, he asked Donald Verrilli, the House’s lawyer, if “we spent all that time talking about broccoli for nothing.” (For reasons that future generations may ponder, many of the arguments in the 2012 A.C.A. challenge devolved into hypotheticals about whether the government could require people to buy broccoli, which Ginsburg referred to as “the broccoli horrible.”) Verrilli replied that Obamacare had attempted to use a “carrot-and-stick approach” to get people to buy insurance; the mandate was the stick, but “there were a lot of carrots”—such as subsidies and the removal of lifetime caps—and “it’s turned out that the carrots work without the stick.” He noted that, before removing the financial penalty in its 2017 tax bill, Congress had received an opinion from the Congressional Budget Office that doing so would not, in fact, upend the insurance market. (And that appears to be true.) Verrilli noted that, although a mandate might have been viewed as crucial to the creation of a new market in insurance, such a market had now been created. The mandate was no longer required; it was severable. Indeed, Congress had severed it, by zeroing out the penalty.

Verrilli’s answer highlighted the topsy-turvy nature of this case. If the problem was really, as some A.C.A. opponents have put it, that the mandate is an instrument of state oppression, didn’t that problem go away when the financial penalty was reduced to zero? In practical terms, the mandate now amounts to no more than a recommendation, and, if it vanishes, no one’s life will change. The penalty will, effectively, go from zero to zero. That fact makes the ability of this case to rally the legal forces of eighteen states something of a puzzle. As Justice Kagan put it, on Tuesday, “Congress has made the law less coercive”; how could it be that what was “not an unconstitutional command before has become an unconstitutional command now, given the far lesser degree of coercive force?” The explanation is that the opponents of the law are blinded by a sort of opportunistic sophistry. They are not looking for freedom from state control but for what Michael Mongan, the California solicitor general, called “leverage” to make the claim that Obamacare is unconstitutional at its core.

Justice Amy Coney Barrett, in her Senate confirmation hearings, referred to California v. Texas as being a case not about Obamacare as a whole but about only the doctrine of severability, which she implied was an arcane matter. That was, of course, deeply misleading—as the lower-court ruling demonstrates, all of Obamacare is at stake. In her questions on Tuesday, Barrett spent significant time on the matter of “standing,” which has to do with who has a right to bring a challenge to a law. (Parties who do so have to show that they have been harmed by that law.) The standing question is a complicated one in this case, partly because it, too, got tangled up with the severability question—basically, the A.C.A. challengers suggested that being harmed by parts of the law other than the mandate might give them standing—and Barrett was not the only Justice who probed it.

Her last line of questioning, to Jeffrey Wall, the acting Solicitor General of the U.S., was among her most revealing. She pushed him to agree that members of Congress might, in zeroing out the penalty, have been doing something that they knew to be unconstitutional. This appeared to be a reference to an extreme scenario that emerged elsewhere in the oral arguments: whether, in 2017, at least some in Congress might have pushed the measure knowing that the result would be unconstitutional and hoping that it would render other parts of the law unconstitutional, too—as Justice Samuel Alito put it, some in Congress “may have done so precisely because they wanted the whole thing to fall.” Remarkably, Alito was not offering that as an accusation but as a justification; he, too, seems to want the whole thing to fall. This is not how the bill was promoted at the time—Congress had voted against repealing Obamacare as a whole—and Verrilli, in his summation, said that to treat the tax revision as a stealth repeal would be to “attribute to Congress a recklessness that is both without foundation in reality and jurisprudentially inappropriate.”

Roberts, unlike Alito, did not sound interested in being dragged into some bank-shot scheme to kill Obamacare. In his exchange with Hawkins, he said that it was “hard for you to argue that Congress intended the entire act to fall” in 2017, when it removed only the penalty. He added, “I think, frankly, that they wanted the Court to do that, but that’s not our job.” He then moved on to talking about the importance of severability. Similarly, in his exchange with Hawkins, Kavanaugh asked, “In 2017, do you read Congress as having wanted to preserve protection for coverage for people with preëxisting conditions? Because it sure seems that way from the record and the text.”

Oral arguments can be deceptive. It may be hard to tell, from Tuesday’s arguments, just how each Justice will come down on the zeroed-out mandate, or on the question of standing. Kavanaugh’s version of the “broccoli horrible” was a hypothetical about whether the federal government could require every American who lives in a house to fly the American flag. But both he and Roberts appear to be reasonably firm on what the remedy would be: remove the mandate and let the rest stand. If that proves true, there would, with Breyer, Sotomayor, and Kagan, be five votes saying that the ways in which Obamacare protects the most vulnerable will survive, despite Ginsburg’s death in October. Barrett will not have undone her work—at least, not yet.


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