Conservative legal experts say the chances are slim that the Supreme Court will invalidate Obamacare, even with President Trump’s pick for a new justice.
Jonathan Adler, a conservative law professor at Case Western Reserve University and critic of GOP-led states’ legal argument to throw out Obamacare, called the threat to the law “grossly overstated.”
“I don’t think it’s a case that has a real likelihood of succeeding,” Adler told the Washington Examiner. “The arguments are bad.”
The Supreme Court on Nov. 10 will hear oral arguments in the case of California v. Texas that could result in the elimination of the entire law, also known as the Affordable Care Act. A decision could be reached with or without a ninth justice on the bench, although a 4-4 tie would throw the law into legal limbo.
Democrats have said that the fate of Obamacare will be a major focus in their case against the confirmation of a Trump appointee.
GOP-led states and the Trump Justice Department argue the law is unconstitutional because it no longer includes tax penalties for those who go without insurance, penalties originally imposed by the law’s individual mandate. The 2017 GOP tax overhaul zeroed out those penalties. The Republican argument is that the penalties were an inseparable part of the healthcare law and that without them, all of Obamacare must be struck down.
“There are multiple reasons why the legal theory, in this case, makes no sense, beginning with the fact that the parties have no standing because the only claim of unconstitutionality is the [individual] mandate. And yet, there is no penalty other than the tax, and the tax is zero,” said Michael McConnell, the director of constitutional law at Stanford University who wrote an amicus brief denouncing the plaintiffs’ argument. McConnell is generally viewed as conservative.
To uphold the law, one of two conservative justices, most likely Chief Justice John Roberts or Justice Brett Kavanaugh, would have to side with the three remaining liberal justices.
Roberts was the swing vote to uphold Obamacare in 2012, and he has since criticized the plaintiffs’ argument that the law cannot stand without the now-repealed individual mandate. He cited the same precedent for severability in a ruling decided in June concerning the Dodd-Frank Act, saying that the court has ruled in the past such provisions were severable because the remaining provisions in an act were capable of functioning independently.
“We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today,” Roberts wrote in his opinion in the June case.
Kavanaugh’s perspective is less clear, but he has also written in the past about the importance of keeping laws passed by Congress as intact and whole as possible.
“Within the past six months, both [Roberts and Kavanaugh] have written opinions on severability that are wholly incompatible with Texas’s arguments,” Adler said. “So one of the two of them has to dramatically reverse themselves.”
Even with a new conservative justice, Adler said, “it’s hard to count to five in support” of the argument to rule Obamacare unconstitutional.
Trump will announce his new Supreme Court pick, reported to be 7th Circuit Court of Appeals Judge Amy Coney Barrett, on Saturday, and Senate Majority Leader Mitch McConnell is eager to proceed with the confirmation process despite opposition from Democrats who say the selection should wait until after the election as several contentious issues, such as the validity of Obamacare and abortion rights, hang in the balance.
“The sorts of people that Trump has been naming to the Supreme Court are no more likely to strike this down than anyone else,” Michael McConnell said. “It’s usually the conservatives who are most insistent upon principles of standing and that congressional and state legislative measures be left undisturbed unless there’s a really solid constitutional basis for overturning them.”
