Barrett, Kavanaugh and Gorsuch in spotlight as Supreme Court decides Obamacare’s future


None of Trump’s three appointees has previously ruled on the merits of a challenge to the law known as Obamacare. Now the law’s fate likely rests with at least one of them.

Last month’s Senate confirmation hearings for Justice Amy Coney Barrett focused on how she might rule, although she consistently declined to discuss the case. The dispute to be heard on Tuesday also offers a first for Justices Neil Gorsuch and Brett Kavanaugh.

The Supreme Court previously upheld Obamacare, in 2012 and 2015, but only four of the justices from those majorities remain on the nine-member bench.

The newest lawsuit against the ACA is the most audacious to date. It asks the court to strike down the entire 2010 law because of an amendment to the individual insurance mandate in 2017. Congress reduced to zero the penalty for people who failed to obtain insurance.

The arguments brought by a group of Republican attorneys general, led by Texas and backed by the Trump administration, would ordinarily face an uphill climb. The court routinely severs the invalid portion of a law and leaves other parts in place, as the justices did in disputes last session.

As Kavanaugh observed in a July dispute over a federal ban on robocalls, “Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.”

But Trump has opposed the sweeping ACA from the outset and wants the current litigation to accomplish what his administration has failed to achieve legislatively.

And just as Trump suggested his court appointees would back him in any litigation related to the November 3 election, he has signaled over the years he expects his appointees to side with him on administration initiatives such as ending Obamacare.

All the justices led by Chief Justice John Roberts would be attuned to the politics surrounding this third major challenge to President Barack Obama’s signature legislation, especially now during the coronavirus pandemic.

The ACA has provided new health coverage to more than 20 million people. The law expanded Medicaid for low-income people, allowed children to remain on their parents’ policies until age 26 and guaranteed coverage for people with pre-existing health conditions such as diabetes and cancer.

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Today’s polarized atmosphere is even more fraught than it was in 2012, when the first Obamacare case arose, in part because of Trump-inspired tensions and assaults on the independence of the judiciary.

Justice Ruth Bader Ginsburg, who had supported the law, died a little over six weeks ago, on September 18. Trump and Senate Republicans raced through Barrett’s nomination, over Democratic protest. Senate confirmation fell exactly along partisan lines, 52-48.

A 6-3, conservative-liberal majority now controls the court, poised to reverse decades-old precedent that enhanced individual rights and strengthened Congress’ regulatory power.

Tuesday’s case, California v. Texas, centers on the consequences of Congress’ action in 2017 zeroing out the tax penalty for Americans who failed to obtain minimum insurance coverage. That individual mandate was intended to encourage more people, especially young, healthy individuals, to buy insurance and spread out the costs of care.

In 2012, the mandate was broadly challenged as a violation of Congress’ power to regulate commerce. When Roberts cast the crucial fifth vote to uphold it, he construed the individual insurance requirement as part of Congress’ taxing authority.

The GOP states that sued assert that the individual mandate is now unconstitutional because there is effectively no tax penalty. The justices on Tuesday will address that question, but because that provision is no longer enforced, the more consequential question will be whether its possible invalidity now dooms the entire law and its multitude of benefits and other requirements.

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The Republican states and Trump administration insist the individual mandate cannot be severed from the rest of the law, including the protections for people with cancer, epilepsy and other long-term conditions. They emphasize that Congress in the 2010 repeatedly referred to the insurance mandate as “essential” to the ACA. They say such assertions in the original legislation prevents courts from cutting off the individual insurance requirement.

California and other Democratic-dominated states, backed by the US House of Representatives, are fighting the attempt to take down the law. The lawyer who will argue for the Democrat-led US House on Tuesday is Donald Verrilli, who was the solicitor general under Obama and won the 5-4 decision to uphold the law in 2012.

The US House told the court in its filing that if Congress had wanted to end the ACA it would not have left virtually all of it in place when it zeroed out the tax penalty.

“Clearer evidence of what Congress intended is difficult to imagine,” the House brief states. The disputed provision “has had no practical effect since the 2017 amendment took effect, and the Act has continued to function to provide millions of Americans with access to affordable insurance.”

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During her October confirmation hearings, Barrett intimated she could be sympathetic to such arguments about congressional intentions, but she also avoided revealing her thoughts on the law or new case.

“Severability is designed to say, well, would Congress still want the statute to stand even with the provision gone?” she said. She compared the judicial severability exercise to “a Jenga game, it’s kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?”

She noted that in the current ACA case, only one provision is arguably unconstitutional.

Yet Democratic senators were skeptical of Barrett’s response. As a University of Notre Dame law professor, Barrett had criticized the Supreme Court’s two prior decisions upholding the law.

“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she said of the milestone 2012 ruling. “He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power.”

For his part, Kavanaugh heard a related challenge to the ACA’s individual mandate when he was an appellate judge but sidestepped the relevant issue at the time.

As a Supreme Court justice since 2018, he has voted to sever unconstitutional sections of legislation from the whole.

He wrote the court’s July opinion upholding a federal ban on automated calls to cell phones despite finding that an exemption in the law (for debt collection services) was unconstitutional. The court declared such robocalls to mobile phones for political purposes as well as debt collection were prohibited.
“Severing the 2015 government-debt exception cures the unequal treatment and constitutes the proper result under the Court’s traditional severability principles,” Kavanaugh wrote.
Kavanaugh also joined an opinion by Roberts last summer that invalidated the Consumer Financial Protection Bureau’s leadership structure but kept other consumer protection policies in place.
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“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.

Gorsuch, who was Trump’s first appointee to the bench, in 2017, has separated himself from that majority approach.

In the dispute over the federal robocall ban, Gorsuch urged the court to reconsider its method for severing unconstitutional sections of law, which he suggested amounted to rewriting legislation.

In the CFPB case, Gorsuch joined Justice Clarence Thomas in highlighting early court history and expressing skepticism about the court practice of deciding which portions of a law stand and which fall.

“Early American courts did not have a severability doctrine,” Thomas wrote in the opinion signed by Gorsuch. “If a statute was unconstitutional, the court would just decline to enforce the statute in the case before it. Our modern severability precedents create tension with this historic practice. … As I have previously explained, the severability doctrine often requires courts to weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions.”



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