The Supreme Court appeared unlikely to wipe out the 2010 health care law, as key conservative justices forcefully indicated during oral arguments Tuesday that such a result would cut against a long-standing legal approach that keeps the role of courts narrow.
If the three justices on the court’s liberal wing agreed with what Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh indicated Tuesday, that would provide five votes for the health care law to survive again in its third major trip to the Supreme Court.
A decision is expected before the end of the term at the end of June.
The Trump administration and a coalition of Republican-led states asked the Supreme Court to strike down President Barack Obama’s signature law that expanded insurance coverage to more than 20 million people, including popular provisions such as required coverage of preexisting medical conditions.
They argued Tuesday that Republicans used the 2017 tax overhaul to eliminate the law’s penalty for most Americans who don’t get health coverage. They say that made the mandate to buy insurance unconstitutional, and that mandate is so essential to the rest of the law that, in turn, it means the remainder of the 2,000-page law “must also fall.”
But Roberts sharply cut down that approach at the beginning of the argument from the Texas Solicitor General Kyle Hawkins, the state that led the effort to strike down the full law.
“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down,” Roberts said, “when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.”
“I think, frankly, that they wanted the court to do that, but that’s not our job,” Roberts said.
Even if the Supreme Court finds the mandate is now unconstitutional without the penalty, the fate of the full law hinges on a traditional approach on something called “severability,” or whether a smaller part of the law that is found unconstitutional can be wiped out while leaving the rest of the law intact.
Roberts said Tuesday that the court must ask if Congress would want the rest of the law to survive if an unconstitutional provision were severed. “And here, Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question,” Roberts said.
And Kavanaugh asked how the challengers would get around a “straightforward case” for severability under previous Supreme Court cases about that approach.
“Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place, the provisions regarding pre-existing conditions and the rest,” Kavanaugh said.
New Justice Amy Coney Barrett, whose pitched confirmation battle focused largely on Democratic senators’ contention that she would strike down the whole health care law, did not give any hints about how she might rule on that issue.
But her vote might not matter if Roberts and Kavanaugh were to side with carving out one provision and letting the rest of the law stand. Barrett focused many of her questions about whether the states and individuals had the right to bring the lawsuit.
Other justices also spent much of the argument grappling about whether the challengers to the law, known as the Affordable Care Act, had the legal right to bring the lawsuit in the first place, and Roberts also sounded skeptical of arguments from the Trump administration.
Donald Verrilli Jr., the former solicitor general under the Obama administration who argued on behalf of the House on Tuesday, said the challengers are asking the Supreme Court “to do what Congress refused to do when it voted down repeal of the ACA in 2017.”
“There was just no way that Congress would have preferred an outcome that throws 23 million people off their insurance, ends protections for people with pre-existing conditions and creates chaos in the health care sector,” Verrilli said.
Verrilli told the justices that the argument to throw out the whole law from the states, known as respondents in the case, is taking “a constitutional adjudication as a game of gotcha to a whole new level.”
“But this is not a game,” Verrilli said. “This court’s precedents require respect for the constitutional role of Congress, and those precedents emphatically foreclose the outcome respondents seek.”