U.S. Supreme Court hears oral arguments on Obamacare for third time in 10 years

By Bethany Blankley | The Center Square

The U.S. Supreme Court heard arguments Tuesday in California v. Texas, a case seeking to overturn the Affordable Care Act after the penalty for its individual insurance mandate was set to zero.

The case initially was filed by the Texas Attorney General’s Office with a coalition of 20 Republican attorneys general and governors as plaintiffs. Several blue states, led by California, joined the lawsuit to defend the ACA, also known as Obamacare.

According to an analysis published by CNBC, the ACA “seems likely to withstand its third challenge at the Supreme Court” because “Chief Justice John Roberts and Justice Brett Kavanaugh both suggested that the court may cast aside a challenged provision of the law, known as the individual mandate, while leaving the rest of it standing.”

A Forbes analysis also suggests that Kavanaugh and Roberts implied in their comments that they were “likely to uphold the Affordable Care Act as the fate of the landmark health care act was argued before the court, suggesting it is unlikely that a majority of justices will ultimately vote to strike down the ACA even if its individual mandate provision is declared unconstitutional.”

The challenge to the Affordable Care Act is rooted in the validity of the individual mandate, which requires all Americans to have health insurance or pay a penalty. In 2012, Chief Justice John Roberts sided with the court’s four liberal justices in ruling that the individual mandate was constitutional.

In 2017, the Republican-controlled Congress passed the Tax Cuts and Jobs Act, which set the individual mandate penalty to zero, meaning the penalty no longer generates revenue and could not be considered a tax, plaintiffs argue.

“Once the heart of the ACA – the individual mandate – is declared unconstitutional, the remainder of the ACA must also fail,” the lawsuit claims.

A U.S. District Court in Texas agreed that the individual mandate is now unconstitutional, as did the 5th U.S. Circuit Court of Appeals in New Orleans.

California Attorney General Xavier Becerra, leading a coalition of 17 state attorneys general defending ACA, argues that lowering the penalty to zero does not invalidate the penalty. They also argue that millions of Americans will lose their health coverage if the ACA is ruled unconstitutional.

Becerra’s coalition appealed to the Supreme Court to hear the case before the 2020 election. The Supreme Court agreed to hear the case in its fall 2020 session.

Kyle Hawkins, the Texas solicitor general, and acting Justice Department Solicitor General Jeffrey Wall argued Tuesday that the individual mandate became unconstitutional when it was stripped of an accompanying penalty.

At one point, Justice Roberts said to Hawkins, “I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate was struck down.”

Kavanaugh told Donald Verrilli, the solicitor general under former President Barack Obama arguing for the defendants: “I tend to agree with you that this is a very straightforward case.” Under the court’s precedents, “we would excise the mandate and leave the rest of the act in place,” Kavanaugh said.

After the hearing, Robert Henneke, general counsel at the Texas Public Policy Foundation and lead counsel for the plaintiffs, told reporters on a conference call that he had a different interpretation of Kavanaugh’s statements and that the Department of Justice’s arguments were “a win for our side.”

In his summary, Wall told justices, “you have to go with what the text of the ACA says. Then at a minimum you cannot separate the individual mandate from other” provisions in the law.

Beccarra has argued that Texas and the Trump Administration have fought to “disrupt our healthcare system and the coverage that millions rely upon.”

Arguments were presented via telephone and streamed live to the public. A decision is not expected until June.