California told the Supreme Court to uphold Obamacare. Here’s how those arguments went
Justices delivered mixed messages at a Supreme Court oral argument that will determine the fate of the Affordable Care Act, with multiple justices expressing doubts that they had the authority to strike down the whole law in this case.
The Supreme Court heard arguments in California v. Texas via teleconference Tuesday morning. The nine justices — including the recent conservative addition to the Court, Justice Amy Coney Barrett — are likely to issue their decision on the Affordable Care Act in the spring or possibly early summer of 2021.
Republican attorneys general, on the side of Texas, are arguing that because the individual mandate is now $0, the rest of the Affordable Care Act should be struck down. Previously, the individual mandate stated that people either needed to have health insurance or pay an annual penalty, which the Court in a previous ruling to uphold the case designated as a tax. But congressional Republicans made that penalty $0 in their tax plan passed in 2017, so Republicans are arguing it no longer counts as a tax.
Further, they argue that if the individual mandate at the center of the health care law is unconstitutional, then the entirety of the Affordable Care Act should be struck down.
“The mandate is inseverable from the remainder of the law,” argued Texas Solicitor General Kyle Hawkins, citing arguments by the administration of former President Barack Obama that said the mandate was essential to the law back when it was enacted.
But Chief Justice John Roberts took direct objection to Hawkins and others arguing the Court should strike down the whole law.
“That’s not our job,” Roberts said. “Congress left the rest of the law intact when it lowered the penalty to $0.”
California Attorney General Xavier Becerra and other Democratic attorneys have a threefold argument. First, they argue that Republican attorneys general don’t have cause for a case, because plaintiffs have to prove that they suffered an injury in order to bring a lawsuit. Becerra and others argue that a $0 tax penalty doesn’t harm anyone.
Justice Neil Gorsuch, appointed by President Donald Trump, asked in questions to California Solicitor General Michael Mongan if it would count as a harm to states if more people are enrolling in Medicaid, which would be a cost to their states, because they believed the individual mandate would cost them.
It was an argument Hawkins cited during his arguments to strike down the law. But Mongan countered that was not a convincing stance.
“It’s an inoperative provision that doesn’t require anyone to do anything ... it doesn’t bind anyone,” Mongan said.
If that stance on harm doesn’t work, their next argument is that the individual mandate is still legal, even in its current form at $0. Justice Brett Kavanaugh, another Trump appointee, indicated that he didn’t think the individual mandate could stand as a tax if the penalty was $0.
“Since it doesn’t earn any revenue, it’s hard to call it a tax now,” Kavanaugh said.
Finally, Democrats argue that even if the Court finds the individual mandate is unconstitutional, then the individual mandate can be struck down without invalidating the entirety of the law — a legal concept known as severability.
Roberts asked Donald Verrilli, attorney for the House of Representatives, who is aiding California and Democrats in the case, if justices would have to ignore past arguments about the individual mandate being necessary for the entirety of the Affordable Care Act to function. Verrilli argued no, and that positive incentives for people to get health care were working without the negative reinforcement of the tax penalty.
“It’s turned out that the carrots worked without the stick,” Verrilli said.
Kavanaugh seemed to agree with the severability argument.
“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” he said.
If the Affordable Care Act is struck down, it will have significant effects on America’s health care system, which has spent the last decade adjusting to the health care law. In California, nearly 17 million Californians with pre-existing conditions could face higher health costs or loss of benefits, 5 million Californians could lose health insurance coverage completely and California would lose $27 billion to cover health care costs for low-income families.
In a press conference Monday, Becerra projected confidence that Democrats would win even with six conservative justices on the Court.
“The tide has turned on health care. I don’t care how divorced or removed you are as a Supreme Court justice,” Becerra said. “You cannot ignore that we have finally put an end to the days … when health care was considered a privilege.”
Previous judges in the case have mostly sided with Republicans. A judge in Fort Worth, Texas ruled in favor of striking the entirety of the law down, while a federal court in New Orleans ruled mostly with Republicans but left open the question of severability.
The Court’s three justices appointed by Democratic presidents, plus Chief Justice Roberts, have previously ruled to uphold the Affordable Care Act in 2012.
Two of the Court’s justices appointed by Republican presidents ruled to repeal it, while the final three justices — all appointed by Trump — have not yet weighed in on the Affordable Care Act from the bench.
This story was originally published November 10, 2020 at 12:40 PM with the headline "California told the Supreme Court to uphold Obamacare. Here’s how those arguments went."
CORRECTION: A previous version of this story incorrectly spelled the last name of California Solicitor General Michael Mongan.
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