The coalition of GOP-led states arguing to throw out all of Obamacare in the majority conservative Supreme Court struggled Tuesday to make the case in oral arguments that the law could not stand without the now-defunct tax penalty for refusing to buy health insurance.
Conservatives on the court were skeptical, suggesting that the law will withstand the latest challenge in the court.
Chief Justice John Roberts told Texas Solicitor General Kyle Hawkins that Congress could have invalidated the whole law in 2017 along with the defunct mandate if they deemed it necessary to maintain the law’s constitutionality, but it did not.
“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,” Roberts said.
He added that Republicans in Congress might have intended for the court to strike down the entire law, “but that’s not our job.”
Justice Brett Kavanaugh, meanwhile, sided with Donald Verrilli, former solicitor general under President Barack Obama, saying that “I tend to agree with you that this is a very straightforward case for severability” and that under court precedent, “we would excise the mandate and leave the rest of the act in place.”
Democrats have argued that invalidating Obamacare would take health insurance away from more than 20 million people, a specter that hung over Senate hearings to confirm President Trump’s latest Supreme Court nominee, Amy Coney Barrett. Tuesday’s arguments were the first for Barrett since her confirmation last month.
When GOP members of Congress failed to repeal and replace the law, as they had promised, in 2017, they reduced the penalty to zero for not complying with the individual mandate, which was considered to be the linchpin of the law.
But because the penalty for not complying with the mandate is now zero, liberal justices argued that the states challenging the law are not harmed and lack standing to bring the lawsuit. Indeed, Roberts questioned whether the court should allow somebody “not injured” by a provision to “roam around through those thousands of pages” of the written law and “pick out whichever ones” they want to challenge.
Roberts, who was appointed by former President George W. Bush in 2005, was the swing vote to uphold Obamacare in a separate case in 2012, and he has since criticized the plaintiffs’ argument that the law cannot stand without the now-repealed mandate. He cited the same precedent for severability in a ruling decided in June concerning the Dodd-Frank financial reform law, saying that the court has ruled in the past that such provisions were severable because the remaining provisions in an act were capable of functioning independently.
The court adjourned a little after noon, and the case is expected to be decided in June 2021.
