With Obamacare once again on the chopping block at the U.S. Supreme Court, comments from the justices appeared to suggest Tuesday that a majority is inclined to leave the bulk of the Affordable Care Act in place.
At least two of the court’s conservatives — Chief Justice John Roberts and Justice Brett Kavanaugh — seemed to suggest they will vote to preserve the rest of the law, even if the individual mandate is found unconstitutional.
It is the third time the ACA, also called Obamacare, is back before the Supreme Court. The first attempts to derail the law failed in the high court by votes of 5-to-4 and 6-to-3.
On those occasions, Roberts provided the fifth vote to save the law on the grounds that the requirement that people either buy health insurance or pay a penalty — the so-called individual mandate — amounted to a tax and thus fell within the taxing power of Congress. But since that time, Congress zeroed out the penalty.
The latest challenge to the law was brought by Texas, other GOP-run states and the Trump administration. They assert that because the penalty has been zeroed out, it raises no revenue, is no longer a tax and thus is unconstitutional. What’s more, they contend that the mandate was so interwoven with the rest of the law, the whole Obamacare statute — including protections for those with preexisting conditions — should be struck down.
Roberts pushed back against that idea Tuesday, telling Texas Solicitor General Kyle Hawkins: “I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the court to do that. But that’s not our job.”
Kavanaugh seemed to agree. He called the ACA a “very straightforward case” under which the “proper remedy would be to sever the mandate and leave the rest of the act in place.”