WASHINGTON (CN) — Months of punditry and handwringing over a major Supreme Court case slated for the week after U.S. elections gave way Tuesday to two hours of arguments and a strong indication that the justices will uphold the bulk of the federal health care law.
President Barack Obama’s domestic policy legacy, the Patient Protection and Affordable Care Act has faced an onslaught of constitutionality challenges in the decade since its inception. One of the early challenges took aim at a key feature of the law known as the individual mandate, which imposed a penalty for people who failed to get coverage for themselves.
Though the Supreme Court ruled for the government in 2012, finding that congressional purview was not required because the penalty was akin to taxation — a new challenge erupted when Republicans took over Congress and zeroed out the penalty.
Whether the provision itself will survive was unclear Tuesday, but at least five members of the court appeared inclined to leave the bulk of the law intact while likely employing the legal doctrine known as severability.
“It does seem fairly clear the proper remedy would be to sever the mandate provision and leave the rest of the law in place,” Justice Brett Kavanaugh said Tuesday.
Since the Affordable Care Act has no express severability clause, it is possible that the legislation could be tossed out altogether if the court rules against the mandate.
Yet, Kavanaugh’s remarks on Tuesday echoed sentiments he expressed in Barr v. American Association of Political Consultants. There the Trump-appointed justice noted that before a single part of a law can be removed from the broader legislation, the court “must determine that the remainder of the statute is capable of functioning independently.”
This would make it ‘fully operative as a law,” Kavanaugh said at the time. Chief Justice John Roberts sided with Kavanaugh in that ruling and appeared to align with Kavanaugh again Tuesday as he broached arguments from Donald Verrilli, counsel for the U.S. House of Representatives, which is defending the law alongside California and other Democrat-majority states.
By zeroing out the mandate in 2017, Congress eliminated economic pressure to purchase insurance, he argued.
“There’s no way Congress would prefer an outcome that throws 23 million people off their health insurance,” Verrilli said.
But eight years ago, and contrary to their arguments today, Justice Roberts noted, those who defended the mandate emphasized that it was the “key to the whole act.”
“Everything turned on getting money from people forced to buy insurance to cover all the other shortfalls in expansion of health care. The briefs go over that, but now the representation is, everything is fine without it? Why the big switch?” Roberts asked. “Was Congress wrong when it said the mandate was key to the whole thing?”
What Congress did was about incentives, Verrilli argued.
“Congress adopted a carrot-and-stick approach. There were a lot of carrots, limited co-pays, no lifetime caps, subsidies to draw people into the market. But there was also a stick: the tax payment if you didn’t enroll,” he said. “No doubt the 2010 Congress thought that was important, but it turns out the carrot works without the stick.”
The Congressional Budget Office said so in a 2017 assessment when Congress asked the agency what would happen if mandate was flatly repealed or the tax zeroed out. The agency said the effect to the market would be the same.
“The carrots worked without the stick, brought enough people into the market to allow it to sustain itself. Congress is allowed to learn from empirical evidence in the world and adjust its choices,” Verrilli said.
Severability was also favored by Chief Justice Roberts in a 5-4 decision the Supreme Court issued this summer, Seila Law v. Consumer Financial Protection Bureau. A provisional limitation on executive branch oversight of the agency was found unconstitutional.
Roberts ruled that given the congressional role — determining and setting the intent of legislation — Congress has always meant for a more surgical approach to be used when curing legal deficiencies like those alleged by the state of Texas Tuesday.
The high court’s ruling in Seila was reflective of Congress’ preferred use of a scalpel to a bulldozer when reshaping law, Roberts said at the time.
Three years ago, the future Justice Amy Coney Barrett had been reflecting on NFIB v. Sebelius ruling when she wrote that “Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Barrett was a professor at the time at Notre Dame Law, about to be elevated to the Seventh Circuit by President Donald Trump. Her appointment this year following the death of Justice Ruth Bader Ginsburg made for Trump’s third pick to the Supreme Court, along with Kavanaugh and Justice Neil Gorsuch.
Apart from Barrett’s essay, none of the three Trump appointees have ruled on the substance of the health care law.
House Majority Leader Steny Hoyer called it “unconscionable” Tuesday that Republicans are continuing waging a war against health care access and especially during the pandemic.
“As we await the outcome of this case, House Democrats will continue to defend the Affordable Care Act and its reforms,” Hoyer said in a statement Tuesday. “We will work with the incoming Biden administration to keep making progress on health care access and affordability, as we did with the passage of legislation earlier this year to strengthen and expand the Affordable Care Act and lower prescription drug prices. We will not rest until every American can access quality, affordable health care.”
Josh Blackman, a professor of law at South Texas College of Law Houston, said the court did not express “even the slightest interest” in setting aside the Affordable Care Act in its entirety.
“I still think a majority of the court may find that the mandate remains an unconstitutional requirement to buy insurance,” he said in a statement. “But the court will likely stop there.”
At today’s hearing, Texas Solicitor General Kyle Hawkins led the charge to quash the individual mandate, as well as the law in its entirety. He told the justices Tuesday that removing the penalty for those without coverage created a litany of new burdens for states, insurance companies and consumers.
“It is a naked command to purchase health insurance and the legislative finding require this court to conclude that the mandate is inseverable from the remainder of the law,” Hawkins said. “In asking the court to hold otherwise, petitioners are asking the court to ignore statutory provisions in the U.S. code.”
The chief justice was unconvinced.
“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act, said Roberts, who was appointed by President George W. Bush. “I think frankly, they wanted the court to do that. But that’s not our job.”
Justice Stephen Breyer meanwhile engaged in a somewhat tense back and forth with Jeffrey Wall, acting solicitor general for the Trump administration, over word choice in the mandate and interpretation of it.
The Clinton-appointed Breyer described the mandate’s use of the word “shall” as “precatory language,” echoing congressional policy or old laws such as those that encouraged people to buy war bonds or even plant trees.
Wall argued the mandate was burdensome even without a tax attached to it and pointed to the use of “shall have coverage.”
“This is pertaining to entreaty or supplication,” Breyer said of the law, noting that without a penalty, it was more akin to a suggestion than an order. “Have you ever said to someone in your family that you ‘shall do it’? That is an entreaty, or a supplication, rather than threatening a punishment.”
Wall responded with light laughter coming across the teleconference line Tuesday.
“No, in my family when I tell my kids they shall do things, that’s a command backed by a penalty,” Wall said.
Breyer was quick to respond, telling Wall the lawyer’s appeared to be a “much more organized family” than his own.
Beyond the constitutionality of the mandate, a question over whether Texas has proper standing to bring the lawsuit at all was also debated Tuesday. Lawyers for California and other Democrat-majority states argue Texas and the other challengers were not injured after the penalty was zeroed out.
Justice Clarence Thomas compared that question to one over mandates for masks, a subject of much contention in the U.S. since the novel coronavirus pandemic hit its shores some nine months ago.
“What if someone violates that command, let’s say, in similar terms to the mandate here but without penalty — would they have standing to challenge the mandate to wear a mask?” Thomas asked Michael Mongan, California’s solicitor general.
Without any real threat of enforcement or a penalty, Mongan argued there could be no harm, and therefore, no standing.
Justice Sonia Sotomayor pressed Mongan later to elaborate.
The high court has already construed the mandate as “not a command,” Mongan said.
“It said it was a choice between buying minimum coverage or making an alternative tax payment. That’s what Congress relied on when it amended the provision. Congress did not indicate it wanted to depart from that choice construction and zeroed out the taxes…. Congress was entitled to rely on this court’s construction and we ought to give Congress the benefit of the doubt, doing what it was doing, to preserve a lawful choice.”
Revealing little of her position during arguments Tuesday, Justice Barrett did ask Mongan to explain his reasoning that “no material difference” existed between repealing the provision and zeroing out the tax.
Erin Hawley, a senior legal fellow at the Independent Women’s Law Center, said in a statement Tuesday that the oral arguments, to her eye, highlighted the court’s belief in the “Founder’s vision” of a limited federal government.
“The government may not force individuals to buy a product like health insurance under the Commerce Clause and Congress cannot zero out a tax and still claim to be operating under the taxing power,” said Hawley, who is member of the Federalist Society and former appellate attorney at King & Spalding and Kirkland and Ellis. “This means that the individual mandate is unconstitutional.”
The court is expected to issue a decision before June 2021.