Supreme Court hears arguments on Obamacare’s future

In 2012, Chief Justice John Roberts delivered the key vote in a 5-4 decision that stunned Republicans, deeming the law’s individual coverage mandate to be valid under the taxing power of Congress. In 2017, the Republican-led Congress reduced the tax penalty for those uninsured to zero as part of the year-end tax overhaul.

The Republican-led states filed a lawsuit, arguing that since the tenure was no longer tied to a specific tax penalty, it had lost its legal basis. They also argued that since the individual mandate was closely tied to a host of other provisions, the entire law should fall, including protections for people with pre-existing conditions.

Last December, a federal appeals court ruled that the individual warrant was unconstitutional. But critically, the court questioned whether the rest of the massive law – even provisions unrelated to the warrant – could stay on the books.

In court documents, Texas Solicitor General Kyle D. Hawkins said the 2017 change made it “impossible to fairly interpret” the warrant as a tax and found it unconstitutional. He argued that not only the pre-existing condition provisions would fall, but the whole massive law as well.

Hawkins said that without the individual mandate, which serves as the “operational core” of the law, “other major provisions are shifting health care benefits and burdens across the industry without rhyme or reason.” ”

The Trump administration has sided with Texas for the most part, although it has made a relatively new argument that the entire law should fall, but the ruling should only apply to the 18 states that launched the challenge. Texas told judges it believed the Justice Department’s restricted remedy would cause chaos. “Disabling the ACA in a more limited geographic area would force citizens of respondent states to heavily subsidize other states with their general taxes,” Hawkins said.

Barrett, before taking the bench, criticized Roberts’ reasoning to uphold the law. But during her confirmation hearings last month, she declined to say how she might rule on the dispute.

Separability issue

Supporters of the Affordable Care Act believe the court should enforce all of the law. But in case he cancels the mandate, they point out that Congress never intended to bring down the law as a whole when it made changes in 2017.

“Congress has made it clear that it does not intend to bear the considerable costs that would have resulted from repealing other provisions of the ACA,” California Solicitor General Michael Mongan wrote in brief .

“The circumstances here make it inconceivable that Congress would have wanted a status that millions of people rely on for their health care and livelihoods to disappear overnight with the wave of the judicial baton,” he added.

Former U.S. Solicitor General Donald Verrilli, arguing on behalf of the House of Representatives, argued that both individuals and the Republican-led states do not suffer the legal prejudice necessary to meet the challenge. He said now that Congress has reduced the penalty to zero, those who refuse to purchase health insurance no longer face a tax for not doing so.

“There is no threat – let alone credible – that the federal government would take action against individual plaintiffs if they did not purchase insurance,” Verrilli said. He added that any harm done to states is speculative.

He said the challenges “call on this Court to strike down the entirety of the most transformative public health care law of the past half-century because it sees a single sentence in it as unconstitutional.”

On two occasions during the previous legislature, judges relied on the doctrine of divisibility to save laws after ruling certain provisions unconstitutional. In one case, Roberts wrote: “We think it’s clear Congress would prefer us to use a scalpel rather than a bulldozer.”

In another case, Kavanaugh insisted on his belief that the court in the case in question should work to “save rather than destroy” a law with an unconstitutional provision.

Some jurists doubt that the judges annul the whole law.

Notre Dame law professor Richard Garnett, who is close to Barrett, said in a statement he doubts the court will strike down the entire law. “Although in 2017 Congress lowered the penalty for failing to comply with the so-called ‘individual mandate’ to zero, there is very little chance that a majority of judges will conclude that this decision makes the whole the ACA – including the parts dealing with coverage of pre-existing conditions – unconstitutional, ”he said.

And although Biden was vice president when the law was passed, experts say the fact that the Senate can remain with a Republican majority will complicate his efforts to save the law.

“Biden should pass legislation to scrapped the case,” said Nicholas Bagley, a law professor at the University of Michigan Law School.

Bagley said such a law would be “simple” to draft. “Congress could increase the penalty tax to a nominal amount (eg, $ 1); it could eliminate the language telling people to buy insurance; or it could add a severability clause. Any of these laws would kill the case, ”he said.

“If Republicans still control the Senate after this election, they are unlikely to play ball.