Republicans Are Probably Going to Lose Their Latest Attempt to Kill Obamacare

The Supreme Court appeared ready to leave the Affordable Care Act largely intact for the third time on Tuesday.
November 10, 2020, 8:01pm
Supreme Court Associate Justices Neil Gorsuch, left, and Brett Kavanaugh watch as President Donald Trump arrives to give his State of the Union address to a joint session on Congress at the Capitol, Tuesday, Feb. 5, 2019 in Washington.

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The Supreme Court appeared ready to leave the Affordable Care Act largely intact for the third time on Tuesday, dashing Republicans’ latest bid to tear down the health care program that has insured millions of Americans.

The high court heard the most recent challenge to the Affordable Care Act, which was brought by a coalition of Republican officials from 18 states and backed by the Trump administration, just one week after Election Day, less than two months after the death of Justice Ruth Bader Ginsburg, and in the midst of a worsening COVID-19 pandemic that’s killed nearly 239,000 Americans and sickened 10 million more. 

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What’s more, the woman recently tapped to fill Ginsburg’s vacant seat, Justice Amy Coney Barrett, cemented the court’s conservative 6-3 majority just before the justices could hear oral arguments. Barrett has been critical of the Supreme Court’s past decisions that upheld the Affordable Care Act, and Democrats pressed her on those comments throughout her confirmation hearings last month.

But legal experts have said for years that the case, California v. Texas, was unlikely to go the way the Republican officials—who are led by Texas’ attorney general—would like it to, and wasn’t strong enough to gut Obamacare outright. And two key conservative justices—Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh—appeared to lean that way on Tuesday too.

To start, Roberts noted that it’s “not our job” to strike down the Affordable Care Act when Congress had already left most of the law in place.

In their challenge to the law, the Republican state officials argued the individual mandate, a portion of the Affordable Care Act that levies financial penalties on people who go without health insurance, is unconstitutional. They also said that if that penalty provision falls, the entire, sprawling health care law has to be struck down with it, since they’re so closely tied together. 

But the justices didn’t seem to agree.

“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.

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The individual mandate was considered an essential part of the law when it was crafted. It survived a 2012 case before the Supreme Court and was upheld as constitutional through Congress’ power to levy taxes. 

But in 2017, a Republican-led Congress reduced the penalty to zero. The 18 Republican state officials who are now challenging the Affordable Care Act, plus two individual plaintiffs who joined their lawsuit, argue the mandate is still commanding people to buy health insurance they wouldn’t otherwise want, even without any real financial penalty. 

While it’s still possible that the Supreme Court would strike down the individual mandate, it’s unlikely the justices would tear down all of the Affordable Care Act and its popular financial protections for people with preexisting conditions, benefits that cover flu shots and mammograms without copayments, and Medicaid expansion in 39 states

The entire law being at risk was what primarily concerned Democrats in Congress in the first place, since, without the Affordable Care Act, millions of people would be uninsured. Democratic attorneys general, led by California, and the U.S. House of Representatives stepped in to defend Obamacare in court since the Trump administration made the unusual decision not to defend federal law. 

“I think it’s most likely that they will find the mandate unconstitutional and severable from the rest of the law,” Allison Hoffman, a professor of law at the University of Pennsylvania Law School and a proponent of the Affordable Care Act, said in an email to VICE News after the Supreme Court arguments concluded. “This would mean that the only provision that goes is the individual mandate. Since we already know the mandate is not doing much work anymore, this result would mean little to no impact on the ground.”

It’s worth noting that taking down the Affordable Care Act is so politically toxic right now that congressional Republicans have downplayed the significance of the Supreme Court case, after trying unsuccessfully for years to repeal the law themselves.