© Reuters. FILE PHOTO: The Supreme Court of the United States is seen in Washington, D.C.
By Lawrence Hurley and Andrew Chung
WASHINGTON (Reuters) – U.S. Supreme Court justices on Tuesday signaled they are unlikely to strike down the entire Obamacare healthcare law in a legal challenge brought by Texas and other Republican-governed states and backed by President Donald Trump’s administration.
The justices heard about two hours of arguments by teleconference in an appeal by a coalition of Democratic-governed states including California and New York and the Democratic-led House of Representatives to preserve the Affordable Care Act (ACA), as Obamacare is formally known.
Chief Justice John Roberts and fellow conservative Brett Kavanaugh both asked questions that suggested they were skeptical of Republican arguments that all of Obamacare must fall even if one key provision, known as the individual mandate, is found to be unconstitutional. That provision originally required people to obtain insurance or pay a financial penalty.
“It’s hard for you to argue that Congress intended the entire Act to fall if the mandate was struck down,” Roberts said, noting that Congress did not repeal the entire law in 2017 when it eliminated the mandate’s financial penalty.
The case represents the latest Republican legal attack on the 2010 law, which was the signature domestic policy achievement of Democratic former President Barack Obama. The Supreme Court in 2012 and 2015 fended off previous Republican challenges to it. Republicans also have failed in numerous efforts to repeal Obamacare in Congress, though Trump’s administration has taken steps to hobble the law.
If Roberts and Kavanaugh in the court’s eventual ruling, due by the end of June, join with the court’s three liberal justices, it would be enough to keep the vast majority of the law intact.
President-elect Joe Biden, who served as vice president under Obama, Biden has criticized Republican efforts to throw out the ACA in the midst of a deadly coronavirus pandemic and hopes to buttress Obamacare after taking office on Jan. 20.
Roberts and Kavanaugh appeared to agree that the mandate to obtain insurance can be separated from the rest of the law.
“We ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed,” Roberts said.
The fact that Congress in 2017 left the rest of the law intact “seems to be compelling evidence,” Roberts added.
Kavanaugh, a Trump appointee, added that “this is a fairly straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”
The justices – conservatives and liberals alike – also raised questions over whether the Republican challengers had the proper legal standing to bring the lawsuit.
The Supreme Court has a 6-3 conservative majority after the Republican-led Senate last month confirmed Trump’s third appointee, Amy Coney Barrett. Most legal experts think the justices will stop short of a seismic ruling striking down Obamacare.
If Obamacare were to be invalidated, up to 20 million Americans could lose medical insurance and insurers could once again refuse to cover people with pre-existing medical conditions. Obamacare expanded public healthcare programs and created marketplaces for private insurance.
Texas and the other Republican-governed states, later joined by Trump’s administration, sued in 2018 to strike it down.
Texas-based U.S. District Court Judge Reed O’Connor in 2018 ruled that Obamacare was unconstitutional as currently structured in light of the Republican-backed change made by Congress a year earlier.
The New Orleans-based 5th U.S. Circuit Court of Appeals last year partially upheld that ruling, saying the law’s individual mandate ran afoul of the Constitution. But the 5th Circuit stopped short of striking down Obamacare. The Democratic-led states and the House then appealed to the Supreme Court.
The 2012 Supreme Court ruling upheld most Obamacare provisions including the individual mandate. The court defined this penalty as a tax and thus found the law permissible under the Constitution’s provision empowering Congress to levy taxes.
In 2017, Trump signed the measure that eliminated the financial penalty under the individual mandate, which gave impetus to the Republican lawsuit. With that change, the individual mandate could no longer be interpreted as a tax provision and was therefore unlawful, the Republican challengers argued.
Liberal Justice Elena Kagan noted that 2017 change actually made the mandate “less coercive.”
Donald Verrelli, the lawyer representing the House, told the justices that the Republican challengers were “asking this court to do what Congress refused to do when it voted down repeal of the ACA in 2017. But their argument is untenable.”
“The Affordable Care Act has been the law of the land for 10 years,” Verrelli added. “The healthcare sector has reshaped itself on reliance on the law. Tens of millions of Americans rely on it for health insurance that they previously could not afford and more rely on the law for its protections and benefits.”
Michael Mongan, California’s solicitor general, told the justices that “what Congress did here was to create an inoperative provision. It doesn’t require anybody to do anything.”
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