Demonstrators show their support for the Affordable Care Act in front of the Supreme Court in Washington, D.C., on Tuesday. Photo by Ken Cedeno/UPI | License Photo
The Supreme Court is taking oral arguments in a case brought by Republicans that may invalidate the healthcare law passed in the Obama administration. Photo by Ken Cedeno/UPI | License Photo
Demonstrators show their support for the Affordable Care Act in front of the Supreme Court in Washington, D.C., on Tuesday. Photo by Ken Cedeno/UPI | License Photo
Nov. 10 (UPI) -- Two Supreme Court justices signaled a willingness to preserve the Affordable Care Act on Tuesday during arguments in a landmark case challenging its constitutionality.
Chief Justice John Roberts and Justice Brett Kavanaugh each suggested they were inclined to favor "severing" the so-called individual mandate from the rest of the ACA, which has provided affordable medical coverage to tens of millions of Americans over the past decade.
Advertisement
In the case, California vs. Texas, the high court is seeking to determine whether eliminating the mandate -- the part of the law that required all uninsured Americans to buy health insurance through ACA exchanges or pay an income tax penalty -- renders the entire healthcare law, known colloquially as Obamacare, unconstitutional.
Kavanaugh, considered a swing vote on the issue, suggested the ACA could still pass constitutional muster without the mandate.
In an exchange with an attorney defending the law on behalf of the House of Representatives, Kavanaugh said, "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."
Roberts later said he disagreed with a coalition of 18 Republican-led states headed by Texas Attorney General Ken Paxton, who argue the ACA was rendered unconstitutional by President Donald Trump's 2017 Tax Cuts and Jobs Act, which removed the penalty and declared it illegal.
Advertisement
"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 told an attorney representing Paxton.
Some experts and observers consider the matter the most important case the Supreme Court will decide this term, which began last month and ends at the end of June. Striking down the ACA would cost as many as 20 million Americans their medical coverage and bring a tax cut to the wealthy.
Trump has been trying to repeal the ACA since he stepped into office -- while President-elect Joe Biden, who helped craft the 2010 law, said during his campaign that he would enhance and expand it.
Speaking Tuesday after arguments in the Supreme Court, Biden said that if the court strikes down the law during a pandemic, it would be "simply cruel and needlessly divisive."
"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," he said. "This isn't hyperbole. It's real -- as real as it gets."
Biden said American families are "reeling" from the effects of the coronavirus pandemic.
"We have a moral obligation to ensure that healthcare is a right for all, not a privilege for a few.
Advertisement
"In the middle of a deadly pandemic that's affecting more than 10 million Americans, these ideologues are once again trying to strip health coverage away from the American people."
The part of the ACA that required uninsured people to buy coverage has helped the law stand up to legal scrutiny in the past. The Supreme Court upheld the law's constitutionality in a 2012 ruling, in which Roberts said the mandate was within Congress' taxing authority.
However, the 5th U.S. Circuit Court of Appeals last year upheld a lower court ruling that said the individual mandate was unconstitutional as "it can no longer be read as a tax and there is no other constitutional provision that justifies this exercise of congressional power."
The Democratic-led House of Representatives and a group of 20 Democratic states have asked the Supreme Court to overturn the lower court decisions, arguing that the Trump administration's stripping of the individual mandate had another impact on the case -- it made the tax issue entirely moot.
"[The law] may encourage Americans to buy insurance, but it does not require anyone to do anything," they wrote in their brief. "Individuals still have a choice: Buy insurance or don't."
In addition to deciding if the individual mandate is unconstitutional, the court will also have to decide whether the provision invalidates the law as a whole. Republicans and the Texas-led coalition say it does.
Advertisement
They argue that Congress intended for the ACA to work as an integrated whole. The Democrat-led group, however, counters that Congress consciously decided to leave the rest of the landmark law intact three years ago when it agreed to remove the individual mandate.
In previous Supreme Court rulings on the ACA, Justices Clarence Thomas and Samuel Alito Jr. said the law could not be separated or salvaged from the unconstitutional portions. Roberts and Kavanaugh, Trump's second high court appointee, noted that the court must closely examine whether the remainder of the law can be severed from the unconstitutional part and remain in place.
"Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute," Kavanaugh wrote.
The Supreme Court, which had just eight members for weeks after the death of Justice Ruth Bader Ginsburg, is back to full membership after the controversial addition of Amy Coney Barrett last month. She wrote in a law review article three years ago that she considered Roberts' decision eight years ago that affirmed the ACA "pushed" the law beyond its "plausible meaning" to save the statute.
During confirmation hearings, Barrett answered ACA-related questions from Democrats by saying "presumption is always in favor of severability."
"When it comes to whether thousands of lawful provisions of the ACA should fall because of one (purportedly) unconstitutional provision, the stakes could not be higher," wrote legal expert Pratik Shah, who filed an amicus brief on behalf of America's Health Insurance Plans, a trade association representing health insurance providers, in support of California and the Democratic-led House of Representatives.
Advertisement
"At the same time, the answer could not be easier. Scholars and court watchers from all perspectives agree: Whether or not the individual 'mandate' is unconstitutional, the rest of the ACA should stand. Even some of the federal government's most respected career lawyers, including from the solicitor general's office, appear to have been unwilling to associate themselves with the government's ultimate failure to defend the ACA."
Others argue that the mandate was illegal and that, as a result, the law should be illegal.
"If the individual mandate is unconstitutional, then the law can be saved only by severing its unconstitutional provision," argues expert Andy Schlafly, who filed an amicus brief in support of the Texas-led coalition.
"The Supreme Court should not create severability out of thin air in order to salvage a misguided law."
The high court heard Tuesday's oral arguments by teleconference, and a final decision is expected by next spring.
Judge Amy Coney Barrett sworn in to U.S. Supreme Court
Amy Coney Barrett is sworn in as a U.S. Supreme Court justice in a ceremony on the South Lawn of the White House on Monday, October 26, 2020. Photo by Ken Cedeno/UPI | License Photo
Barrett will take the official oath tomorrow at the Supreme Court on Tuesday, allowing her to begin work on the court and establishing a 6-3 conservative majority. Photo by Ken Cedeno/UPI | License Photo
Supporters rally for Judge Amy Coney Barrett as the Senate voted 52-48 in favor of confirming her nomination to the Supreme Court. Photo by Kevin Dietsch/UPI | License Photo
Protesters oppose Amy Coney Barrett's nomination to the Supreme Court, as Democrats have criticized Republicans for rushing the confirmation ahead of November's election. Photo by Kevin Dietsch/UPI | License Photo
Senate Minority Leader Chuck Schumer, D-N.Y., speaks on the steps of the U.S. Capitol at a news conference after Democrats boycotted the Senate Judiciary Committee vote on the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court on October 22. Photo by Leigh Vogel/UPI | License Photo
Speaker of the House Nancy Pelosi, D-Calif., speaks during her weekly news conference at the U.S. Capitol after Democrats boycotted the vote on Barrett. Photo by Leigh Vogel/UPI | License Photo
Images of people who've been helped by the Affordable Care Act occupy the seats of Democratic senators who boycotted the Senate Judiciary Committee meeting on Barrett. The Republican-dominated committee voted to advance her nomination to the full Senate. Pool Photo by Caroline Brehman/UPI | License Photo
Judiciary Committee Chairman Sen. Lindsey Graham, R-S.C., presides next to an image of people who've been helped by the Affordable Care Act occupying the seat of ranking member Sen. Dianne Feinstein, D-Calif., who along with fellow Democratic committee members boycotted the meeting. The high court will soon hear a challenge to the ACA. Pool Photo by Hannah McKay/UPI | License Photo
Sen. Chuck Grassley, R-Iowa, takes a cellphone photo of the empty Democratic senators' seats. Pool Photo by Caroline Brehman/UPI | License Photo
"Handmaids Brigade" protesters stand in front of the Supreme Court prior to the committee's vote on Barrett's nomination. The costumes are a reference to the Hulu adaptation of the Margaret Atwood novel, "The Handmaid's Tale," which depicts a world in which women are stripped of their rights. Photo by Leigh Vogel/UPI | License Photo
Barrett meets with senators on Capitol Hill in Washington, D.C., on October 21. Photo by Leigh Vogel/UPI | License Photo
A full Senate vote on Barrett's confirmation has been scheduled for October 26. Pool Photo by Greg Nash/UPI | License Photo
Sen. Martha McSally, R-Ariz, (L) meets with Barrett on October 21. Pool Photo by Jim Lo Scalzo/UPI | License Photo
Barrett wears a protective mask as she meets with Sen. Rob Portman, R-Ohio, at the U.S. Capitol in Washington, D.C. on October 21. Pool Photo by Stefani Reynolds/UPI | License Photo
Barrett (L) meets with Sen. Roy Blunt, R-Mo. Pool Photo by Jacquelyn Martin/UPI | License Photo
Kristen Clarke testifies via video during the last day of confirmation hearings for Barrett before the Senate Judiciary Committee on October 15. Pool Photo by Susan Walsh/UPI | License Photo
Supporters rally in support of Barrett's nomination outside the Hart Senate Office Building in Washington, D.C., during the committee's final day of hearings. Photo by Kevin Dietsch/UPI | License Photo
Demonstrators wear "Handmaid's Tale" costumes as they protest outside of the Supreme Court in Washington, D.C. The costumes are a reference to the Hulu adaptation of the Margaret Atwood novel, which depicts a world in which women are stripped of their rights. Photo by Kevin Dietsch/UPI | License Photo
Sen. Patrick Leahy, D-Vt., speaks before the Senate Judiciary Committee. Pool Photo by Samuel Corum/UPI | License Photo
Professor Saikrishna Prakash of the University of Virginia School of Law testifies in favor of Barrett's confirmation. Pool Photo by Shawn Thew/UPI | License Photo
Laura Wolk, a former law clerk for Barrett, testifies to the committee. Pool Photo by Susan Walsh/UPI | License Photo
Judiciary Committee Chairman Sen. Lindsey Graham, R-S.C., takes part in a meeting before witness testimony. Pool Photo by Mandel Ngan/UPI | License Photo
American Bar Association representative Pamela J. Roberts (R) testifies before the committee on Barrett's legal qualifications to ascend to the high court. Pool Photo by Shawn Thew/UPI | License Photo
Senator Cory Booker, D-N.J., delivers remarks during the confirmation hearing. Pool Photo by Jonathan Ernst/UPI | License Photo
Graham (L) and ranking member Sen. Dianne Feinstein, D-Calif., attend the committee's executive business meeting. Pool Photo By Tom Williams/UPI | License Photo
Barrett answers questions on the third day of her confirmation hearing, though she declined to state her views on many issues. Pool Photo by Drew Angerer/UPI | License Photo
Barrett's family members are seated behind her during the hearing. Pool Photo by Susan Walsh/UPI | License Photo
Graham (L) confers with Feinstein during the third day of Barrett's confirmation hearings. Pool Photo by Michael Reynolds/UPI | License Photo
Barrett smiles as she answers questions. Pool Photo by Michael Reynolds/UPI | License Photo
Sen. John Cornyn (L), R-Texas, and Sen. Thom Tillis, R-N.C., participate in the third day of hearings. Pool Photo by Drew Angerer/UPI | License Photo
Barrett answers questions on the second day of her confirmation hearing on October 13. Pool Photo by Leah Millis/UPI | License Photo
Sen. Ted Cruz, R-Texas, wears a face mask designed like the Texas flag as Barrett appears before the committee. Photo by Kevin Dietsch/UPI | License Photo
Barrett refused to answer questions about her opinion of the 1973 Roe vs. Wade ruling that legalized abortion. "It would be wrong for me to do that as a sitting judge," she said. Pool Photo By Tom Williams/UPI | License Photo
Sen. Amy Klobuchar, D-Minn., speaks with a tweet displayed from President Donald Trump during the hearing. Pool Photo by Patrick Semansky/UPI | License Photo
Barrett told the committee members she would be able to set aside her own strong religious beliefs and rule with impartiality on all legal matters presented to the high court. Pool Photo by Shawn Thew/UPI | License Photo
Cruz speaks during the hearing. Pool Photo by Patrick Semansky/UPI | License Photo
Barrett sits in front of her family. Pool photo by Bonnie Cash/UPI | License Photo
Barrett removes her face mask when she returns from a break. Photo by Kevin Dietsch/UPI | License Photo
Committee Chairman Sen. Lindsey Graham, R-S.C., (R) speaks at the hearing. Pool Photo by Erin Schaff/UPI | License Photo
Barrett introduces members of her family to the committee. Photo by Kevin Dietsch/UPI | License Photo
Her husband, Jesse Barrett (R), and son John Peter sit behind her. Photo by Kevin Dietsch/UPI | License Photo
Graham (L) and Sen. Dianne Feinstein, D-Calif., speak before the hearing. Photo by Kevin Dietsch/UPI | License Photo
Barrett delivers her opening remarks on October 12. Pool Photo by Erin Schaff/UPI | License Photo
Barrett, 48, removes her mask to speak. Pool Photo by Win McNamee//UPI | License Photo
Barrett's youngest daughter, Juliet Barrett (L), stands with her father, Jesse Barrett, behind the judge. The Barretts have seven children. Pool Photo by Leah Millis/UPI | License Photo
Barrett is sworn in for the hearing. Pool Photo by Greg Nash/UPI | License Photo
The hearings are expected to last four days. Photo by Kevin Dietsch/UPI | License Photo
Ranking Judiciary Committee member Sen. Diane Feinstein, D-Calif., said Barrett's nomination is a threat to the Affordable Care Act. A challenge to the healthcare law is to go before the Supreme Court in November. Pool Photo by Stefani Reynolds/UPI | License Photo
Sen. Kamala Harris, D-Calif., who is running for vice president, speaks via video during Monday's hearing as Sen. John Kennedy, R-La., listens. Harris criticized the decision to hold the hearing during the coronavirus pandemic. Pool Photo by Patrick Semansky/UPI | License Photo
Committee Chairman Sen. Lindsey Graham, R-S.C., defended the decision to go ahead with Barrett's confirmation hearings as a constitutional duty. Pool Photo by Stefani Reynolds/UPI | License Photo
Sen. Mazie Hirono, D-Hawaii, wears a face mask depicting Ginsburg at Monday's hearing. Photo by Kevin Dietsch/UPI | License Photo
Demonstrators rally in front of the Supreme Court in support of Barrett's nomination. Photo by Ken Cedeno/UPI | License Photo
Demonstrators rally in front of the Supreme Court in support of Barrett's confirmation. Photo by Ken Cedeno/UPI | License Photo
Barrett goes to the U.S. Capitol to meet with Republican senators ahead of her confirmation hearing on October 1. Pool Photo by Caroline Brehman/UPI | License Photo
Barrett (L) meets with Sen. Mitt Romney, R-Utah, on September 30. Democrats have refused to meet with Barrett, citing opposition to moving ahead with her confirmation so close to the Nov. 3 presidential election. Pool Photo by Tom Williams/UPI | License Photo
Barrett (L) listens as Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., answers reporters' questions before a meeting in the Mansfield Room of the Capitol on September 29. Pool Photo by Chip Somodevilla/UPI | License Photo
Barrett, 48, has seven children under age 20. Pool Photo by Greg Nash/UPI | License Photo
Barrett (L) meets with Senate Majority Leader Mitch McConnell, who has vowed to push ahead with her confirmation. The move follows his refusal to grant the same courtesy to President Barack Obama's nominee after the death of Justice Antonin Scalia before the 2016 election. Pool Photo by Susan Walsh/UPI | License Photo
Demonstrators with the Poor People's Campaign walk to the Hart Senate Office Building on September 29 as Barrett meets with Senate Republicans. The group was demonstrating against her nomination. Photo by Stefani Reynolds/UPI | License Photo
From left to right, White House counsel Pat Cipollone, Barrett, Vice President Mike Pence and White House Chief of Staff Mark Meadows escort Barrett to the Senate for meetings. Pool Photo by Susan Walsh/UPI | License Photo
Barrett and Pence walk up the steps of the U.S. Capitol. Pool Photo by Erin Schaff/UPI | License Photo
Barrett (C) meets with Pence (L) and McConnell. Pool Photo by Erin Schaff/UPI | License Photo
Barrett (L) walks to the White House Rose Garden as President Donald Trump announces her as his nominee to the Supreme Court on September 26. Photo by Shawn Thew/UPI | License Photo
Trump is nominating Barrett to fill the vacancy left by Ginsburg's death on September 18. Photo by Kevin Dietsch/UPI | License Photo
If confirmed, Barrett will be Trump's third appointment to the Supreme Court and the fifth woman to serve. Photo by Shawn Thew/UPI | License Photo