Most of the Affordable Care Act appeared likely to survive Tuesday as the Supreme Court heard oral arguments over the law’s individual mandate.
The big picture: Two members of the court’s conservative majority — Chief Justice John Roberts and Justice Brett Kavanaugh — suggested they’re unlikely to throw out the entire health care law, as Republican attorneys general and the Trump administration have urged. Their votes would be enough to save it.
Where it stands: The Trump administration and a group of red states, led by Texas, say the ACA’s individual mandate became unconstitutional in 2017, when Congress zeroed out the penalty for not carrying insurance.
- Their more dramatic argument is that the court should throw out the rest of the ACA along with what remains of the mandate.
Driving the news: “It does seem fairly clear that the proper remedy would be to sever the mandate and leave the rest of the law in place,” Kavanaugh said.
- Roberts was also unreceptive to Texas’ argument that the whole law has to fall.
- “Here, Congress left the rest of the law intact … that seems to be compelling evidence” that Congress did not intend to repeal the rest of the law, Roberts said.
Those two conservative justices, in addition to the court’s three remaining liberals, would be enough to save the bulk of the health care law, including its popular protections for pre-existing conditions.
- The rest of the court’s conservative members spent less time on severability and didn’t send especially strong signals about how they would be likely to rule on that question, if they invalidate the mandate.
Between the lines: The justices’ questioning also pointed toward another potential avenue to rule against Texas and leave the ACA intact. Several justices, including Roberts, questioned whether Texas had the legal standing to bring this case to begin with.
- Texas doesn’t have to pay the individual mandate. It says it’s burdened by other parts of the law.
- But that theory — allowing challengers to invalidate a whole law by challenging a specific provision that doesn’t harm them — could “kind of explode” the court’s approach to standing, Justice Elena Kagan said.
Yes, but: Oral arguments are always an imperfect guide to how the justices will ultimately rule. There have been surprises before — including in Affordable Care Act cases.
Flashback: How a conservative Supreme Court could save the ACA