“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,” Kavanaugh said to a lawyer defending the law.
Roberts, who wrote the 2012 Supreme Court decision upholding the act’s constitutionality, suggested again that the justices should not do something Congress itself has failed to do — repeal the law.
“I think 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 told Kyle Hawkins, the Texas solicitor general leading the red-state effort.
“I think, frankly, that they wanted the court to do that. But that’s not our job.”
The court’s three liberal justices again were ready to defend the law, which would indicate a majority. And it was unclear if other conservative justices thought the objecting states and the Trump administration had made its case.
Washington lawyer Donald B. Verrilli Jr., who as President Barack Obama’s solicitor general had defended the law called Obamacare at the Supreme Court previously, argued this time on behalf of the House of Representatives.
He told the justices that to intervene to kill the law would cause disruption in the health care market and a loss of coverage to more than 20 million Americans in the midst of a pandemic.
“To assume that Congress put all of that at risk when it amended the law in 2017 is to attribute to Congress a recklessness that is both without foundation and reality and jurisprudentially inappropriate,” Verrilli said.
“In view of all that transpired in the past decade, the litigation before this court, the battles in Congress, the profound changes in our health care system, only an extraordinarily compelling reason could justify judicial invalidation of this law at this late date.”
Tuesday’s case posed three questions: Do the challengers — two individuals and 18 states led by Texas — have legal standing to bring the case? Did changes made by Congress in 2017 render unconstitutional the ACA’s requirement for individuals to buy insurance? And if so, can the rest of the law be separated out, or must it fall in its entirety?
Hawkins said the changes made in 2017 eliminated the only reason that the Supreme Court in 2012 said the ACA could survive: that the
The individual mandate once was seen as the law’s linchpin, a buy-in necessary to the goals of preventing insurers from denying coverage based on preexisting conditions and providing the subsidies that would make insurance affordable.
It was also what saved the law in its initial challenge at the Supreme Court. Roberts said the penalty for not buying insurance could be construed as a tax, and thus the law was constitutional under Congress’s taxing power.
When the Republican-controlled Congress failed to kill the ACA in 2017, it did what it thought was the next best thing: It reduced to zero the penalty for not complying with the mandate.
Hawkins said the changes made in 2017 eliminated the only reason that the Supreme Court in 2012 said the ACA could survive.
“The mandate as it exists today is unconstitutional,” Hawkins said. “It is a naked command to purchase health insurance and as such, it falls outside Congress’s enumerated powers.” Because the mandate is essential to the law, he continued, “the mandate is inseparable from the remainder of the law. ”
But those defending the law say that’s too clever, and justices seemed skeptical. For one thing, if the penalty for not complying with the mandate is zero, the plaintiffs and the states are not harmed and thus lack the essential ingredient for bringing a lawsuit.
Because the 2017 Congress left the mandate on the books, and simply zeroed out the formerly income-based penalty, it could be revised as a tax at any time, with a solution as simple as setting the penalty at $1.
The Washington Post (c) 2020. All rights reserved.
{Matzav.com}
