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“After roughly two hours of oral argument in the Supreme Court on Tuesday, it appeared likely that the Affordable Care Act will survive.” In 2012, the Supreme Court upheld the law by adopting the argument that the individual mandate was a tax rather than a command (which would have been unconstitutional). However, in 2017 Congress reduced the penalty to $0; Texas and several other states sued, arguing that with no monetary penalty the mandate can no longer be considered a tax and must be struck down. They further argued that the mandate is integral to the law and that without it the entire law must be struck down. The judges will decide whether the mandate is unconstitutional; if they rule that it is, then they will determine whether it is “severable” from the rest of the law; in other words, whether the entire law must be struck down or just the mandate. SCOTUSblog
Many on both sides oppose striking down the entire law:
“While the challengers may have a credible claim on the legality of the reshaped mandate, their conclusion that the whole law must therefore fall is absurd. The ACA is a sprawling law that includes all sorts of provisions disconnected from the individual mandate, such as its hospital safety regulations and its expansion of Medicaid coverage for Americans near the poverty line…
“Moreover, the private insurance markets the law created, which were thought to require the mandate to function properly when the law passed in 2010, showed themselves durable enough to operate without it, a factor that Congress had at hand as it defanged the mandate in 2017. There is no reason for the court to overrule the judgment of the 2017 Congress, which negated the mandate but kept the rest of the law.”
Editorial Board, Washington Post
“Yes, some justices who dissented in NFIB v. Sebelius and viewed the mandate as unconstitutional did opine that the individual mandate was not severable from the rest of the statute. The dissenting justices reached this conclusion largely based on the Obama administration’s representations in court: The government lawyers had argued that the mandate was indispensable to the broader functioning of the statutory scheme…
“But it’s hard to take the same view now. It’s no longer 2012. And Congress has subsequently amended the statute. Therein lies the rub: By wiping away the penalties for not buying insurance policies but leaving the rest of the statute intact, Congress was implicitly saying that the remaining law was not dependent on the individual mandate to buy insurance being in place.”
James Copland, Manhattan Institute
Other opinions below.
“Conservatives on the court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett — all asked questions probing the standing question. That is, in order for a party to have standing to sue, the party must first be able to show injury from a given action. But with the mandate tax reduced to $0, that has become a bigger hurdle for plaintiffs in this case than it was in past Obamacare challenges…
“As the justices sit down in conference, they will have multiple potential avenues to uphold Obamacare. They could simply reject the case on standing grounds without even getting to the merits. They could simply uphold the toothless mandate. Or the five most conservative justices could revisit the 2012 ruling and declare the mandate unconstitutional while arguing that it is severable from the rest of the law. Even Alito, who voted to strike down the whole law in 2012, noted that there had been a ‘sea change’ since then in terms of how central the mandate is perceived given that it has been defanged and has not led to the death spiral for insurance markets that many predicted.”
Philip Klein, Washington Examiner
“At least five Justices are against overturning the entire law no matter what the Court rules on the tax-less mandate… The mystery is why this wasn’t obvious to Texas Attorney General Ken Paxton, who was the driver of this litigation. Or to the Trump White House, which was advised by its Justice Department that it was taking a losing position—legally and politically.…
“The White House went ahead anyway, giving Democrats their best policy advantage during the recent election—that the Trump appointees to the Supreme Court would cost Americans their health insurance. As Tuesday’s argument showed, this isn’t going to happen. But that won’t stop Democrats from continuing the drumbeat as they try to win two Senate seats in Georgia runoffs on Jan. 5.”
Editorial Board, Wall Street Journal
The Attorney General of Texas argues, “The core of the ACA is a three-legged stool. The first leg is the individual mandate — buy insurance or pay a tax penalty. Importantly, the law itself, as reiterated by President Barack Obama and Speaker Nancy Pelosi, deems the mandate essential to achieving the ACA’s central purposes. The second leg is known as the guaranteed issue — insurers must accept all applicants regardless of preexisting conditions. The third is the community rating — insurers cannot charge substantially different rates because of age, sex, or health status. Remove one leg, and the whole thing collapses.”
Ken Paxton, Washington Examiner
“There is virtually no chance the Supreme Court will strike down the entire ACA because the individual mandate is severable from the rest of the statute. But this doesn’t mean the case is inconsequential. On the contrary, a ruling that the individual mandate is unconstitutional will establish all-too-necessary constraints on Congress’s taxing power and give force to the Framer’s design of the federal government of limited and enumerated powers… The decision to strike down the individual mandate would be a win for [Americans] everywhere.”
Erin Hawley, The Hill
“As several justices noted, one seemingly insurmountable problem with the lawsuit is that zeroing out the penalty turned the mandate into a mere suggestion, incapable of forcing anyone to buy insurance or causing anyone harm. How can Congress overstep its constitutional authority when it’s not asserting any actual power? And how can anyone claim to be injured by a penalty that costs them nothing? The Texans say they have to spend more on health insurance now, but they can’t blame the mandate for that — and that’s the provision they’re challenging.”
Editorial Board, Los Angeles Times
“Conservatives will take Roberts and Kavanaugh’s skepticism as proof that when Democrats spent so much time using this case to warn about the damage the new conservative supermajority on the court could do, they were being hyperbolic, even dishonest. But that’s utterly bogus. It was absolutely right and proper for Democrats [to] focus on this case during Amy Coney Barrett’s confirmation…
“That’s because it shows just how determined the GOP is to use its control of the court to achieve what it can’t through ordinary politics. Even if the court might not give Republicans their way this time, there’s always a next time. What’s more, all the controversy around the ACA may have helped convince Roberts and Kavanaugh to do what they look poised to do.”
Paul Waldman, Washington Post
“The swing justices did seem especially eager to make their views clear — and to dispel any public fear that the court’s ever-deepening conservative majority would do now what it failed to do back in 2012… [Kavanaugh’s] explicit foreshadowing is certainly intended to put the minds of Democrats at rest. But not because Kavanaugh loves Democrats and cares about their peace of mind. Rather, his comments can be construed as an effort to make it harder for Democrats to use the potential death of Obamacare as a tool to get out the vote in Georgia…
“To be clear, I am not saying that Kavanaugh’s vote, when he casts it, will be shaped by this kind of partisan thinking. Rather, I’m simply noting that by making it pretty clear at oral argument how he plans to vote, Kavanaugh knows he is going to affect public discourse around the future of the ACA. If that helps keep the Senate Republican, and hence protect the Supreme Court from being packed, he will certainly have no objection.”
Noah Feldman, Bloomberg
“This attempt to repeal Obamacare in its entirety is likely to fail — although the Court has signaled that it intends to make significant incursions on the Affordable Care Act in other cases. But the mere fact that this case was taken seriously by lower court judges and, ultimately, by at least some members of the Supreme Court, is a sign of just how far to the right the federal judiciary has moved…
“As Yuval Levin, a prominent conservative policy wonk, wrote in National Review, the Texas lawsuit ‘doesn’t even merit being called silly. It’s ridiculous.’ Yet this ridiculous argument made it all the way to the Supreme Court. And while there are very likely to be five votes on the Court to save Obamacare, it is also likely that at least some justices will vote to repeal the law.”
Ian Millhiser, Vox
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