Justice Brett Kavanaugh delivered a strong signal on Tuesday that he would be a vote to uphold Obamacare.
During virtual oral arguments in the Texas v. California case, he suggested that Supreme Court precedent would argue against toppling the whole law were the court to invalidate the individual mandate.
The latest challenge to Obamacare is rooted in the fact that back in 2012, Chief Justice John Roberts ruled that while the law’s individual mandate was not a constitutional exercise of Congress’s power to regulate commerce, it was nonetheless a legitimate use of its taxing power.
State plaintiffs, joined by the Trump administration, have been arguing that because the 2017 tax law reduced the penalty for going uninsured to $0, the mandate can no longer be defended as a tax, so all Congress is left with is the underlying mandate, which is otherwise unconstitutional. As a result, they argue the mandate now needs to be struck down, and because it is inextricably linked to the rest of the law, the whole thing needs to go.
It’s that last point related to severability, where Kavanaugh gave the strongest signal. Severability is a legal doctrine whereby courts try to preserve as much of a law as possible if they are striking down one of its provisions.
Kavanaugh, speaking to a lawyer defending Obamacare, said, “I agree with you that this is a straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”
It is not often that justices are so emphatic about their views on such a central part of the case.
And it was not the only way that the arguments provided reason to believe the current challenge to Obamacare would fail.
In the oral arguments, other conservatives on the court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett — all asked questions probing the standing question. That is, in order for a party to have standing to sue, the party must first be able to show injury from a given action. But with the mandate tax reduced to $0, that has become a bigger hurdle for plaintiffs in this case than it was in past Obamacare challenges.
Usual disclaimers apply as to why one shouldn’t assume too much based on oral arguments. Justices often ask questions to inform their own opinions that may not be indicative of how they will ultimately rule.
But that said, it does seem that as the justices sit down in conference, they will have multiple potential avenues to uphold Obamacare.
They could simply reject the case on standing grounds without even getting to the merits. They could simply uphold the toothless mandate. Or the five most conservative justices could revisit the 2012 ruling and declare the mandate unconstitutional while arguing that it is severable from the rest of the law. Even Alito, who voted to strike down the whole law in 2012, noted that there had been a “sea change” since then in terms of how central the mandate is perceived given that it has been defanged and has not led to the death spiral for insurance markets that many predicted.
Tuesday’s oral arguments provided another reason to question the Democrats’ strategy of turning Barrett’s confirmation hearing into a debate over the looming threat to individuals with preexisting conditions.
