A majority of the justices on the Supreme Court appeared likely Tuesday to spare the Affordable Care Act, better known as Obamacare, from a challenge by Republican-led states to strike it down.
After two hours of oral arguments conducted by telephone conference call, the court seemed headed for a ruling that would say that even if part of the law is no longer valid, the rest of it can be left intact.
The court’s three liberals seemed prepared to uphold the law, and two of the court’s conservatives suggested that even if part of it is struck down, the rest can be saved. That would create at least a five-vote majority to keep the law.
More than 20 million Americans now depend on the law for their health care, President Barack Obama’s signature legislative accomplishment. But 18 red states led by Texas urged the court to rule that Obamacare’s requirement for nearly all Americans to obtain health insurance or pay an income tax penalty — known as the individual mandate — is unconstitutional.
The Supreme Court first upheld the health care law in 2012. The majority opinion, written by Chief Justice John Roberts, said the individual mandate was a legitimate exercise of Congress’s taxing authority. But in 2017, the Republican-led Congress set the tax penalty at zero. That led the red states to argue that because the tax was effectively eliminated, the revised law could not be saved as a tax and was therefore an unconstitutional effort to require all Americans to obtain something. And, they said, the entire law must be scrapped.
But at least two of the court’s conservatives seemed to reject that argument Tuesday.
“It’s hard for you to argue that Congress intended the entire act to fall when the same Congress didn’t even try to repeal the rest of the act,” Roberts told Kyle Hawkins, the Texas solicitor general. “They wanted the court to do that, but that’s not our job.”
And Justice Brett Kavanaugh said he considered it “a very straightforward case,” based on precedents that said the Supreme Court will not strike down an entire law if one part is found to be invalid, unless that was clearly Congress’s intent. Those prior cases, he said, suggest that “the proper remedy would be to sever the mandate and leave the rest of the act in place.”
Twenty blue states, led by California, said that with the tax penalty at zero, there effectively is no individual mandate, so the law is not unconstitutional.
“The law still provides a choice — buy insurance or do nothing,” Michael Mongan, California’s solicitor general, told the court.
The red states said Congress meant the health care law to work as an integrated whole. Prohibiting insurers from denying coverage for pre-existing conditions and allowing young people to stay longer on the policies of their parents are meant to work because of the near universal command to buy insurance. Without the mandate, the challengers said, the law falls apart.
But even conservative Justice Samuel Alito questioned whether that is still the case.
“There was a strong reason to think of the mandate like a part of an airplane that was essential to keep it flying,” Alito said. “But now it has been taken out, and the plane has not crashed. So how would we explain that the mandate in its present form is essential to the operation of the act?”
The court will issue a decision by next spring.