WASHINGTON—Several conservative Supreme Court justices joined liberals voicing skepticism that the entire Affordable Care Act must fall because of one change Congress made in 2017, suggesting the law may survive its latest test in the high court.
A Texas-led group of Republican-leaning states, backed by the Trump administration, contend that the 2017 tax law that reduced to zero the ACA’s penalty for failing to have insurance destroyed its constitutional foundation. The Supreme Court found in 2012 that the law was justified under Congress’s power to levy taxes.
California and a coalition of liberal-trending states, joined by the Democratic-controlled House, defended the law, arguing that a mandate without a penalty makes carrying insurance a personal choice rather than a legal command, but that even if the mandate is unconstitutional, the balance of the 1,000-page law, including provisions protecting Americans with pre-existing conditions, should stand.
“It’s hard for you 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,” Chief Justice John Roberts told Texas’s lawyer, Kyle Hawkins, the state solicitor general.
Mr. Hawkins argued that the move, even if inadvertent, made the entire law unconstitutional, because the statute still says that most Americans “shall” carry health insurance, a command that the Supreme Court found justified only if it were enforced through a tax penalty.
Justice Brett Kavanaugh said that even if elimination of the penalty made the mandate unconstitutional, the court’s precedents required upholding as much of a statute as possible. He said that all indications were that the rest of the ACA, with provisions extending Medicaid coverage to the working poor, allocating subsidies for lower-income Americans to purchase private insurance, and protecting individuals with pre-existing conditions, could independently stand.
“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place, the provisions regarding pre-existing conditions and the rest,” Justice Kavanaugh told Mr. Hawkins.
The Texas lawyer returned to the core of his argument: that the 2010 Congress which passed the ACA had referred to the mandate as essential to make a private insurance market providing near-universal coverage economically feasible. That language effectively indicated that lawmakers would have preferred never to have passed the ACA rather than see it continue without the insurance mandate, he said.
The House’s lawyer, Donald Verrilli, said the 2010 Congress expected the mandate would be necessary to establish the expanded private insurance marketplace envisioned by the ACA. But by 2017, he said, it was clear that the markets were functioning adequately and would continue to do so without the compulsion to carry insurance.
The 2010 Congress, then under Democratic control, used “a carrot and stick approach” to create the ACA framework, with incentives to get coverage and penalties for avoiding it, said Mr. Verrilli, who as solicitor general in the Obama administration, successfully defended the law in previous cases.
“It’s turned out that the carrots work without the stick,” Mr. Verrilli said. “Congress is allowed to learn from experience, empirical experience in the world, and adjust its policy choices.”
Some conservative justices appeared more open to the challengers’ arguments.
“A lot of members in 2017 may well have thought that eliminating the penalty or the tax would not cause any harm and the whole Act could continue to function well without it,” said Justice Samuel Alito. “But others who voted for it may have done so precisely because they wanted the whole thing to fall,” intentionally injecting a fatal constitutional defect.
New Justice Amy Coney Barrett, who Democrats at her confirmation hearings portrayed as a dire threat to the ACA, asked largely technical questions that avoided signaling her thinking on the case.
The three liberal justices, for their part, suggested the case should be dismissed outright because since there were no adverse consequences for failing to carry insurance, there was no remedy the court could provide.
Justice Elena Kagan observed that the court upheld the individual mandate when the penalty was several hundred dollars. “The only thing that’s changed is something that made the law less coercive,” she said.
One of President Trump’s top goals, frequently voiced during his 2016 campaign, was getting rid of the ACA. However, while he has long said he has an alternative health plan in the works, he has never released one. And while Republicans opposed the ACA from the get go, they never found enough support to repeal the law, even when they controlled both houses of Congress. But the 2017 measure effectively eliminated the provision Republicans found most objectionable, the mandate to carry insurance.
President-elect Joe Biden, who ran on expanding the ACA, held a press conference following the arguments to reiterate his plans to build on Obamacare.
“Regardless of the outcome of this case, I promise you this: Beginning on Jan. 20, Vice President-elect Harris and I, we’re going to do everything in our power to ease the burden of health care on you and your families,” Mr. Biden said. He said his transition team would soon start work “to flesh out the details so that we can hit the ground running: Tackling cost, increasing access, lowering the price of prescription drugs. Families are reeling right now,” he said.
Democrats have continued to make defense of the ACA a principal political issue.
A federal district judge in Fort Worth, Texas, ruled in favor of those challenging the law. Last year, a federal appeals court in New Orleans upheld most of that decision, leaving open the question of severability.
Eliminating the ACA would strip insurance from at least 20 million Americans who currently receive coverage through its expansion of Medicaid coverage and subsidies for private insurance.
Moreover, the law is now firmly entrenched in the U.S. health system. The ACA ensures coverage of preventive care, including a possible Covid-19 vaccine, without cost sharing in Medicare, Medicaid and private insurance.
The ACA also has spurred federal programs that pay doctors and hospitals for patient outcomes rather than giving them a fee for each service; guaranteed coverage for people with pre-existing health conditions; and put limits on out-of-pocket costs for care.
