The Supreme Court heard arguments in a Republican challenge to the constitutionality of the Affordable Care Act Tuesday, and while we won’t know the court’s ruling until next spring, most observers concluded that a majority of justices appear to favor upholding the 2010 health care law.
“[A]t least five justices, including two members of the court’s conservative majority, indicated that they were not inclined to strike down the balance of the law,” The New York Times said in its review of the proceedings.
The legal claim: A lawsuit filed by Republican officials in 18 states and backed by the Trump administration claims that the Affordable Care Act violates the Constitution now that the individual mandate — the tax penalty for not purchasing health insurance — was set to $0 by Congress as part of the GOP tax package in 2017.
The lawsuit contends that the mandate was an essential part of the ACA, and now that it has been effectively eliminated, it should be formally eliminated — a move they say would invalidate the entire law, based on an earlier Supreme Court ruling that backed the ACA by tying the mandate to Congress’s taxing powers. While there are other legal issues involved, the “severability” claim is central to the case, though it has been widely criticized by legal experts across the political spectrum.
What the justices said: The proceedings Tuesday were the first time the court has heard a challenge to the ACA with its new 6-3 conservative majority, and there was considerable speculation that the newest justice, Amy Coney Barrett, would tip the scales against the law. But Coney Barrett showed few signs of accepting the Republican argument, and instead asked why the court should ignore the will of Congress by overturning the law.
Chief Justice John G. Roberts Jr. said that it was clear that lawmakers did not intend to undo the ACA in its entirety when they effectively eliminated the mandate. “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,” he said. Roberts added that while the challengers were hoping that the court would invalidate the ACA, “that’s not our job.”
Justice Brett Kavanaugh also expressed doubts about the Republican claim. “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 said.
The court’s liberal justices — Stephen Breyer, Elena Kagan and Sonia Sotomayor — also made clear their skepticism about the suit’s claims, questioning multiple components of the case, including issues surrounding standing and precedent.
What’s at stake: Republicans have sought to undo the Affordable Care Act since it passed in 2010, making “repeal and replace” a rallying cry for conservatives throughout the Obama and Trump years. But the law has become deeply interwoven with the American health care system since taking effect in 2014, and most experts say that removing it would cause chaos. Among other things, roughly 20 million people could lose their health insurance in one fell swoop, and Americans would lose legal protections for people with pre-existing conditions.
What others are saying: President-elect Joe Biden blasted the Republican effort to overturn the ACA, calling it “simply cruel and needlessly divisive,” especially in the middle of a pandemic. “Let's be absolutely clear about what's at stake: The consequences of the Trump administration's argument are not academic or an abstraction. For many Americans, they are a matter of life and death, in a literal sense,” Biden said.
Larry Levitt of the Kaiser Family Foundation said that one likely outcome of the case is that the Supreme Court could throw out the now-toothless mandate but leave the rest of the ACA standing. “That remains possible, and would avoid disrupting insurance for millions of people,” Levitt said Tuesday. “If the Supreme Court does allow the ACA to stand, except for the individual mandate, it seems like the law is really now here for good with President-Elect Joe Biden taking office.”