WASHINGTON (CN) — Months of punditry and handwringing over a major Supreme Court case slated for the week after U.S. elections gave way Tuesday to two hours of arguments and a strong indication that the justices will uphold the bulk of the federal health care law.
President Barack Obama’s domestic policy legacy, the Patient Protection and Affordable Care Act has faced an onslaught of constitutionality challenges in the decade since its inception. One of the early challenges took aim at a key feature of the law known as the individual mandate, which imposed a penalty for people who failed to get coverage for themselves.
Though the Supreme Court ruled for the government in 2012, finding that congressional purview was not required because the penalty was akin to taxation — a new challenge erupted when Republicans took over Congress and zeroed out the penalty.
Whether the provision itself will survive was unclear Tuesday, but at least five members of the court appeared inclined to leave the bulk of the law intact while likely employing the legal doctrine known as severability.
“It does seem fairly clear the proper remedy would be to sever the mandate provision and leave the rest of the law in place,” Justice Brett Kavanaugh said Tuesday.
Since the Affordable Care Act has no express severability clause, it is possible that the legislation could be tossed out altogether if the court rules against the mandate.
Yet, Kavanaugh’s remarks on Tuesday echoed sentiments he expressed in Barr v. American Association of Political Consultants. There the Trump-appointed justice noted that before a single part of a law can be removed from the broader legislation, the court “must determine that the remainder of the statute is capable of functioning independently.”
This would make it ‘fully operative as a law,” Kavanaugh said at the time. Chief Justice John Roberts sided with Kavanaugh in that ruling and appeared to align with Kavanaugh again Tuesday as he broached arguments from Donald Verrilli, counsel for the U.S. House of Representatives, which is defending the law alongside California and other Democrat-majority states.
By zeroing out the mandate in 2017, Congress eliminated economic pressure to purchase insurance, he argued.
“There’s no way Congress would prefer an outcome that throws 23 million people off their health insurance,” Verrilli said.
But eight years ago, and contrary to their arguments today, Justice Roberts noted, those who defended the mandate emphasized that it was the “key to the whole act.”
“Everything turned on getting money from people forced to buy insurance to cover all the other shortfalls in expansion of health care. The briefs go over that, but now the representation is, everything is fine without it? Why the big switch?” Roberts asked. “Was Congress wrong when it said the mandate was key to the whole thing?”
What Congress did was about incentives, Verrilli argued.
“Congress adopted a carrot-and-stick approach. There were a lot of carrots, limited co-pays, no lifetime caps, subsidies to draw people into the market. But there was also a stick: the tax payment if you didn’t enroll,” he said. “No doubt the 2010 Congress thought that was important, but it turns out the carrot works without the stick.”
The Congressional Budget Office said so in a 2017 assessment when Congress asked the agency what would happen if mandate was flatly repealed or the tax zeroed out. The agency said the effect to the market would be the same.
“The carrots worked without the stick, brought enough people into the market to allow it to sustain itself. Congress is allowed to learn from empirical evidence in the world and adjust its choices,” Verrilli said.