U.S. Supreme Court

Kavanaugh, Roberts appear ready to join with liberal justices to uphold most of Affordable Care Act

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A U.S. Supreme Court majority appeared ready to uphold most of the Affordable Care Act in oral arguments Tuesday.

Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh indicated that they thought most of the law could stand after Congress eliminated the tax penalty to zero for failing to carry insurance. Their votes, along with that of the court’s three remaining liberal justices, would be enough to save the law, report the New York Times, the Washington Post, CNN and Law.com.

Roberts had written the 2012 controlling opinion upholding the law’s individual mandate to carry insurance under Congress’ taxing power. The U.S. Department of Justice has argued that the entire law must now be struck down because the tax penalty was eliminated.

Besides requiring people to carry insurance, the law also bans insurers from denying coverage based on preexisting conditions, expands Medicaid, allows children to have coverage on their parents’ policies until age 26, and guarantees “essential health benefits” that include maternity and mental health coverage.

There are three issues in the case, according to the Washington Post. First, do the two individuals and 18 states challenging the law have legal standing to sue? Second, did eliminating the tax penalty make unconstitutional the mandate for individuals to buy insurance? Third, if the individual mandate is unconstitutional, can the rest of the law be severed from that provision?

It was that last issue that Kavanaugh and Roberts addressed. Kavanaugh said he thinks there is a “straightforward case for severability under our precedents.”

Roberts said it is hard 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 said he frankly thought that lawmakers wanted the court to repeal the law, “but that’s not our job.”

The case, California v. Texas, was an issue during the confirmation hearings for Justice Amy Coney Barrett, the court’s newest justice. She had previously criticized Roberts’ initial decision that upheld the law in a 2017 article. But during the confirmation hearing, she noted that she had not addressed the kind of severability issues before the Supreme Court.

In a question Tuesday, Barrett asked whether the mandate to carry insurance is unconstitutional since the tax penalty was eliminated. She also asked about standing. The New York Times said Barrett was “harder to read” than other justices based on her questions.

See also:

ABAJournal.com: “5th Circuit overturns insurance mandate in health law, doesn’t decide if other provisions survive”

ABAJournal.com: “In written answers, Barrett notes ‘3 hurdles’ to overturning Affordable Care Act but avoids specifics”

ABAJournal.com: “Chemerinsky: The Supreme Court returns to a term like no other”

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