The Affordable Care Act is expected to meet its third challenge to the Supreme Court.
During the skirmishes over a case aimed at eliminating Obamacare, two court conservatives signaled Tuesday that they would not scrap the landmark legislation.
Chief Justice John Roberts, who cast the key vote for Obamacare in 2012, and Judge Brett Kavanaugh, an agent appointed by President Donald Trump, suggested that the court overturn a contested provision of the law known as the individual mandate while doing the Office leaves the rest of it standing.
Such a decision would leave the key aspects of the 900-page legislation that has transformed American healthcare over the past decade, from expanding Medicaid to dozens of states to requiring insurers to cover those with pre-existing conditions .
"I think the winner on that case today was the Affordable Care Act and Congress," said Michele Goodwin, a law professor at the University of California at Irvine, in an interview after the arguments closed.
The 2010 individual mandate provision requires most Americans to purchase health insurance or pay a fine. The GOP-controlled Congress reduced the fine to $ 0 in 2017.
The Supreme Court upheld the mandate under Congressional tax sovereignty in 2012, but Texas and other Republican-led states argued that reducing the penalty made that justification impractical and, as a result, all affordable care law must be thrown out.
The Trump administration spoke out through the Justice Department for the challenge of the red states.
The court's six Conservatives appeared to agree with the arguments of Kyle Hawkins, Attorney General of Texas, and acting Attorney General for the Department of Justice, Jeffrey Wall, that the individual mandate became unconstitutional when he was stripped of an accompanying sentence.
But Roberts and Kavanaugh suggested that this wouldn't do the rest of the law to failure.
"I think it would be hard for you to argue that if the mandate were struck down, Congress intended to overturn the entire act," Roberts told Hawkins, noting that the same Congress "did not even try to overturn the rest of the act . " Roberts was appointed by President George W. Bush.
Roberts acknowledged that some Republican lawmakers may want the Supreme Court to crush the law, "but that's not our job."
Kavanaugh told Donald Verrilli, who was attorney general under former President Barack Obama, that "I tend to agree with you that this is a very simple case," and that under the precedents of the court, we would cut the mandate and leave the rest of the law in place and place. "
Verrilli argued on behalf of the Democratically controlled House of Representatives, which joined a California-led coalition of Democratic States in defense of Obamacare. Michael Mongan, the attorney general of California, argued on behalf of the blue states.
Kavanaugh later told Hawkins that it was "safe" as if Congress were to lower the individual mandate sentence in 2017 without abolishing other provisions of the Affordable Care Act, such as protection for those with pre-existing conditions.
While the Republicans in Congress repeatedly threatened to repeal the entire affordable care bill, the party has never been able to get a majority in the House and Senate willing to do so. An effort to "meager waiver" of certain provisions, including the individual mandate, failed in 2017 after the late Arizona GOP Senator John McCain voted against the effort.
Michael Kimberly, a partner at McDermott Will & Emery law firm, co-chair of the Supreme Court and the firm's appeals practice, said Kavanaugh's comments were "strikingly direct."
Kimberly said Kavanaugh's comments were atypical, suggesting that the judge was trying to signal how he would rule the case.
"I think the defenders have reason to be cautiously optimistic," said Kimberly.
The court's three liberals, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, appeared ready to join the blue states and the House of Representatives. Five votes are required to achieve a majority on the jury of nine judges.
The Democratically appointed individuals appeared skeptical of the red states' argument that the mandate was unconstitutional and sympathized with California's claim that those states did not even lack the ability to sue because they could not prove they were through the law had been damaged.
"The only thing that has changed is something that has made the law less compulsive," Kagan said.
Breyer suggested that allowing the red states to assert their claim could open challenges to all kinds of laws that would be unlawful if they included penalties, such as hypothetical laws asking citizens to plant trees, Tidying up yards or buying war bonds.
The court's conservatives seemed more amenable to claims by the red states and the Justice Department that the challengers to the law had been harmed.
Roberts noted that if Congress passed a law requiring everyone to mow their lawn once a week, even if there was no penalty, those who fail to do so will "certainly be hurt". Justice Clarence Thomas said such a law could still have "dissuasive" effects.
A decision that allies with the red states by invalidating the individual mandate, but with the blue states by leaving most of the ACA standing, would mean a victory for the Democrats.
Health care activists felt that more than 20 million people could lose their insurance if the Supreme Court knocks down the Affordable Care Act.
The dispute, debated in the shadow of last week's presidential election, was a focal point for Democrats during Justice Amy Coney Barrett's affirmation hearings last month. Barrett's interview on Tuesday did not provide much insight into her deliberations on legal issues.
Two lower courts that had joined Texas, including the 5th US Court of Appeals, found the individual mandate to be unlawful. The appeals court did not say whether the rest of the Affordable Care Act needed to be struck down as well.
The clashes, which were supposed to last 80 minutes, began at 10 a.m. and ended around noon. As a result of the Covid-19 pandemic, they were carried out by telephone and broadcast live to the public.
The case became a political focal point in the race between Trump and President-elect Joe Biden, who have outlined very different visions for the future of American healthcare.
Trump pushed for the Affordable Care Bill to be passed, while Biden's agenda is to build on the bill the former Vice President played primarily in guiding Congress.
Political interests were heightened by the pandemic that killed more than 230,000 people in the United States and made health care a more prominent issue.
Efforts to contain the pandemic also caused a devastating recession that resulted in millions of people losing their health insurance. After the late judge Ruth Bader Ginsburg, a Liberal, passed away in September, the Democrats attempted to turn the fight over their successor Barrett into a referendum on the law.
"The elephant in the room happens to be the political tenor behind all of these issues," Goodwin said. She noted that in light of Trump's attacks on federal justice, the Chief Justice had to be more neutral than previous court leaders.
"The chief judge must call balls and strikes to the point where it is clear that the court will uphold the rule of law and that the court will not be biased under its jurisdiction," Goodwin said.
"How much of it he controls is limited," she added. "The reality is that this is a court that is affected by the political tenor of the time."
A decision in the case known as California v. Texas, No. 19-840, is expected in late June.