“Not our job”: Roberts, Kavanaugh appear skeptical of striking down Obamacare at Supreme Court

Washington — The Supreme Court wrestled Tuesday — one week after the presidential election and in the midst of a global pandemic — with the future of the 2010 landmark health care law championed by Democrats and attacked by Republicans, with two justices on the conservative wing of the bench expressing skepticism toward arguments the Affordable Care Act should be struck down in its entirety.

The justices heard arguments stretching two hours in the dispute between groups of red states and blue states over the constitutionality of the Affordable Care Act’s individual mandate, with opponents of Obamacare, including the Trump administration, hoping the Supreme Court will deliver the fatal blow to the health care law they have long sought to dismantle.

But Chief Justice John Roberts and Justice Brett Kavanaugh, one of the three justices on the court appointed by President Trump, both signaled they disagree with arguments from Republican-led states that Obamacare should fall if its individual mandate is deemed unconstitutional.

“It’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts, who voted in 2012 to uphold the mandate, told Texas Solicitor General Kyle Hawkins, who argued on behalf of the 18 red states challenging the law.

The chief justice added that he believes Congress wanted the Supreme Court to strike down the full law, “but that’s not our job.”

“Under the severability question, we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed,” Roberts said. “And here Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question.”

Similarly, Kavanaugh indicated he believed Obamacare should stand, even without the mandate.

“I tend to agree with you, this is a very straight forward case for severability under our precedence, meaning that we would excise the mandate and leave the rest of the act in place,” Kavanaugh told Donald Verrilli, who argued on behalf of the Democratic-led House.

Looking at the Supreme Court’s past cases, Kavanaugh told Hawkins that “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.”

Congress, he said, “knows how to write an inseverability clause, but this language is different from how that usually looks.”

The clause in the Affordable Care Act referenced by Kavanaugh states: “the requirement [to buy health insurance] is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.”

The case before the justices marks the third attempt by Republicans for the Supreme Court to dismantle the 2010 health care law that has extended health insurance coverage to millions of Americans and provides protections to people with pre-existing conditions.

The Supreme Court upheld Obamacare’s individual mandate, which requires Americans to buy health insurance, in a 2012 decision written by Roberts. But the makeup of the high court has since changed, with the additions of Justices Neil Gorsuch, Kavanaugh and Amy Coney Barrett, all appointed by Mr. Trump. 

Barrett’s confirmation to replace the late Justice Ruth Bader Ginsburg brought the most notable shift to the high court, as her appointment expanded its conservative majority from 5-4 to 6-3, leaving Democrats’ convinced Obamacare’s fate was effectively sealed.

While Barrett criticized the 2012 ruling from the Supreme Court in an essay published in 2017, she declined during her confirmation hearing last month to answer questions about the dispute before the justices this week and noted the legal questions raised in the challenge eight years ago differ from those at hand now.

Brought by a coalition of 18 red states and with the backing of the Trump administration, this case challenges the constitutionality of Obamacare’s individual mandate. The law originally imposed a financial penalty on Americans who failed to obtain health insurance, but Congress did away with the penalty when it approved its tax reform package in 2017. Now, the states argue the zeroing out of the fine renders the mandate unconstitutional, as the “change made it impossible to fairly interpret” the provision as a tax, as it was construed in the 2012 case.

The states argue the rest of Obamacare should topple if the mandate is struck down, as it is “inextricably intertwined” with the remainder of the law and cannot be severed from it. 

Arguing to uphold Obamacare, meanwhile, is a group of 20 states and the District of Columbia, as well as the Democratic-led House of Representatives. Together, the defenders of the health care law argue Congress’s change to the law “modified the terms of the choice presented by [the mandate] — by allowing individuals to freely decide whether to buy health insurance without facing any tax assessment if they do not.”

“The effect of the amendment was to render [the provision] nugatory: it may encourage Americans to buy insurance, but it does not require anyone to do anything. Congress does not exceed its constitutional authority by creating such a provision,” the blue states, led by California, argued in a filing with the Supreme Court.

The blue states also warn of “prolonged uncertainty” about the future of Obamacare makes it more difficult for individuals, businesses and state and local governments to make decisions in reliance on the law, “threatening adverse consequences for American families, healthcare markets and the broader economy.”

The red states brought their challenge to Obamacare in February 2018, and a federal district judge in Texas struck down the full law as unconstitutional later that year. Then, in December 2019, a three-judge panel on the 5th U.S. Circuit Court of Appeals found the individual mandate unconstitutional, but sent the dispute back to the lower court to determine whether the rest of the law could stand without it. 

During Tuesday’s arguments, several justices, including Barrett, focused on whether the red states and individual plaintiffs have the legal standing to challenge the individual mandate, with Roberts and Justice Elena Kagan warning of the avalanche of lawsuits that could arise if the Supreme Court were to accept the Trump administration’s theory for why they can bring the suit.

“It would seem a big deal to say that if you can point to injury with respect to one provision and you can concoct some kind of inseverability argument, then it allows you to challenge anything else in the statute,” Kagan told acting Solicitor General Jeffrey Wall, who argued for the Trump administration, noting Congress today often passes omnibus bills. “Isn’t that something that the United States should be very worried about and isn’t it something that really cuts against all of our doctrine?”

Roberts said adopting the Justice Department’s argument “expands standing dramatically.”

“You’re talking about almost 1,000 pages and you’re letting someone not injured by the provision he’s challenging sort of roam around through those 1,000 and pick out the ones he wants to attack,” the chief justice said.

The questions about whether the GOP-led states showed concrete harm also led to several hypothetical questions. Roberts asked about a law requiring Americans to mow their lawns weekly. Justice Clarence Thomas posed a question about penalties for not wearing a face mask during the pandemic. Kavanaugh asked about a law requiring every American to fly an American flag outside their homes.

While Democrats have sounded the alarm that the case could mean the end of Obamacare because of the Supreme Court’s conservative tilt, the high court in its last term declined to invalidate entire statues on two occasions, applying principles of severability to separate the provisions at issue from the rest of the law.

In one case involving robocalls to cell phones, the high court invalidated a government-debt exception allowing robocalls made to collect a debt owed to the government, but left the rest of the robocall restriction in place. In a second involving the structure of the Consumer Financial Protection Bureau, the court found a measure dictating the removal of the bureau’s director can be struck down without invalidating the entirety of the law that created the consumer agency.

Still, casting a shadow over the arguments was Mr. Trump’s 2015 pledge that his nominees to the Supreme Court would “do the right thing” and vote to kill Obamacare, unlike Roberts who joined with the liberal wing of the bench to uphold the law in the 2012 case.

Arguments over the future of the health care law are also set against the backdrop of the ongoing coronavirus pandemic, which has forced the Supreme Court to change the way it conducts its business. The justices are holding arguments remotely through telephone conference, as the court closed its doors to the public indefinitely in March due to the pandemic. Now, coronavirus infections are surging once again, as the number of confirmed cases surpassed 10 million and the death toll stands at a staggering 237,700.

The Urban Institute estimates that if the Supreme Court were to strike down the Affordable Care Act, it would lead to an additional 21.1 million uninsured in 2022 and 9.3 million people would lose income-based subsidies for insurance purchased on Obamacare’s exchanges.

A decision from the justices is expected by the end of June.