At least five Supreme Court justices, including two of the Court’s six conservatives, have indicated that they are leaning toward upholding the bulk of the Affordable Care Act, clashing with Republicans who argue that the entire law is unconstitutional.
Chief Justice John Roberts and Justice Brett Kavanaugh suggested during oral arguments Tuesday that the law’s individual mandate, which required most Americans to obtain insurance or pay a penalty, can be separated from the rest of the law, known as Obamacare.
“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the law in place,” Kavanaugh said Tuesday.
Roberts appeared to agree, noting that the Republican-controlled Congress did not nix the entire Affordable Care Act when it reduced the individual mandate penalty to $0 in 2017.
“Congress left the rest of the law intact when it lowered the penalty to zero,” Roberts said. “I think it’s hard for you to argue Congress intended the entire act to fall if the mandate was struck down if the same Congress that lowered the tax penalty to zero did not even try to repeal the rest of the act.”
In 2012, Roberts cast the deciding vote that upheld the individual mandate in the 2010 law, calling the mandate a tax and citing Congress’ power to impose taxes.
The Chief Justice added during Tuesday’s arguments that while GOP lawmakers may have hoped the Supreme Court would strike down the law, “that’s not our job.”
The current case is the third time Obamacare has faced a major legal challenge at the Supreme Court. The case, backed by the Trump administration, was brought by several Republican attorneys general led by Texas.
The case figured prominently in the confirmation hearings of newly-confirmed Justice Amy Coney Barrett, who replaced the late Justice Ruth Bader Ginsburg. Democrats repeatedly pressed Barrett to comment on the constitutionality of Obamacare, stressing the negative implications for their sick constituents if she were to move to strike it down. Barrett pushed back throughout the hearings, pointing out that, while she had questioned the constitutionality of the individual mandate in her academic writing, she had never addressed the question of severability, which determines whether Obamacare could stand absent the individual mandate provision.