(CNN) — The Supreme Court appeared ready to again reject a Republican-backed attempt to end the Affordable Care Act, based on the judges’ tone during two hours of oral argument Tuesday.
This would represent a final failure of President Donald Trump’s push to end Obamacare.
As always, oral arguments are not necessarily an indication of how the judges will decide. Some observers came out of the 2012 challenge to Obamacare mistakenly convinced that the court would repeal the law months before that year’s presidential election.
But there is no way to resist ‘reading tobacco’. This is what we know:
Roberts and Kavanaugh seem to agree to keep most of the law intact
Simply put, Chief Justice John Roberts saved Obamacare in 2012, famously (or not, depending on your point of view) by calling the mandate to buy health insurance a tax.
Trump and the GOP-controlled Congress cut that sanction to zero three years ago, giving Republicans, including the Trump administration, a chance to go back to court. If the tax disappears, they say, the logic to maintain the law is over.
The bigger question is whether the court, if it agrees with that logic, would annul the entire law or just cut the section of the mandate.
You don’t always get such direct statements as this from Judge Brett Kavanaugh, Trump’s second appointee to the court: “I tend to agree with you on this very simple case of divisibility under our precedents, which means removing the mandate and leaving the mandate. rest of the law in place by reading our severability precedents. That’s what Kavanaugh told Don Verrilli, the lawyer for the Democrat-led US House of Representatives, who stands up for the law because the Trump administration won’t.
That would be the ball game.
“Even if there are five votes to override an individual zero penalty mandate, Kavanaugh has made clear that he believes the provision can be separated from the rest of the ACA. (And we already know the president of the court feels that way), ”said Steve Vladeck, CNN legal analyst and University of Texas law professor. “Therefore, there is no way to count five votes to discard the entire statute.”
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Republicans may not have a base to stand on
Even before we get to the question of whether the individual mandate is constitutional, or whether the law can be broken or should be eliminated in its entirety, there is the question of whether we should even be at this point.
Most justices could go out of the way and find that Texas and the other GOP-led states that filed the impeachment have no standing to sue in the first place.
Roberts began his questioning on the subject of the base, followed by Justices Clarence Thomas and Kavanaugh.
“I suppose in most places there is no penalty for wearing a face mask or mask during covid, but there is some degree of disgrace if you don’t wear it in certain settings,” Thomas asked California Attorney General Michael Mongan. “What if someone violates that mandate, let’s say it’s in similar terms to the mandate here but without sanction, would they have standing to challenge the mandate to wear a mask?”
Roberts seemed preoccupied with opening the floodgates to all sorts of unwanted challenges.
“He is letting someone who has not been hurt by the provision that he is challenging to wander through those thousand pages and choose the ones he wants to attack,” said the Chief Justice.
Roberts is on top of this
The Chief Justice is a conservative who has cut to the heart of the Voting Rights Act, voted to expand the scope of the Second Amendment, and worked to expand executive authority. But his decision to defend Obamacare in 2012 means that Republicans will never completely convince him.
On Tuesday, he seemed concerned that his court would have to address the issue once again. Two lower courts had said that the individual mandate had to disappear, but were divided on whether it could be separated from the rest of the law.
Roberts doesn’t tweet, but his tone would be characterized as a clear sub-tweet to Republicans and Trump, a president who has repeatedly criticized the Chief Justice.
“I think it is difficult for you to argue that Congress intended to have the entire law fall if the mandate was overturned when the same Congress that reduced the sentence to zero did not even attempt to repeal the rest of the law,” Roberts told the attorney. General of Texas, Kyle Hawkins.
“I think, frankly, they wanted the court to do that, but that’s not our job.”
Amy Coney Barrett in the spotlight
During their confirmation hearings last month, Senate Democrats slammed Amy Coney Barrett, saying Trump wanted to put her on the court to help ensure Obamacare was repealed.
Had written a Article scathing in a review of the law that broke down Roberts’s ruling in 2012 and had not elaborated it during his hearings, citing ongoing litigation.
Tuesday was the first time we heard from her in the dock on the issue, and she was skeptical about Texas’ position to sue as well, but also hinted at some of her thoughts on Roberts.
“The petitioners have pointed out that if, in fact, Congress reduced it to zero and… and no longer made it a tax, they have argued that Congress would have deliberately done something unconstitutional in substantiating this language, if, in fact, it has force , I suppose, in his commercial power, ”Barrett said at one point.
And he added: “And I … I’m asking because, you know, there were five judges who thought that, but it was not a majority opinion who said it.”
Unfortunately, as the court is hearing oral arguments over the phone, we were unable to see the reaction of the Chief Justice.
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The plane didn’t crash, so what’s the problem?
When the law was enacted in 2010, the individual mandate was seen as crucial to attracting healthy people to the individual market to offset the higher costs of sicker members. It was the “stick” that would push people to sign up, along with the “carrots” of premium subsidies that would make coverage more affordable.
The fine was set at the maximum of US $ 695 per adult and US $ 347.50 per child or 2.5% of family income.
However, early on, some healthcare experts wondered if the fine was high enough to force many consumers to buy insurance. The effectiveness of the mandate remains under debate.
A 2017 Congressional Budget Office (CBO) report, frequently cited during oral arguments, estimated that the number of people with health insurance would decline by 4 million in 2019 and 13 million in 2027. The individual market will decline it would remain stable in almost all parts of the country in the next decade.
The CBO also projected that only a small number of people who sign up for insurance because of the mandate, which was reduced to $ 0 as of 2019, would continue to do so just because they wanted to comply with the law.
However, enrollment in Obamacare plans has been fairly stable. More than 11.4 million people signed up for coverage in the Affordable Care Act exchanges in 2019 and 2020, compared with just under 11.8 million in 2018, the last year the mandate was in effect.
In his interrogation, Judge Samuel Alito alluded to the fact that the individual market has been maintained despite the fact that Congress established the fine at US $ 0.
“At the time of the first case, there were strong reasons to believe that the individual mandate was like a part of a plane that was essential to keep the plane in flight, so if that part was removed, the plane would crash,” he asked. Jeffrey Wall, the acting attorney general.
“But now the part has been removed and the plane has not crashed,” added Alito. “So if we decided this case the way you advocate, how would we explain why the individual mandate in its current form is essential to the functioning of the law?”
Vogue’s Ariane, Austen Bundy, CNN’s Hannah Rabinowitz and Daniella Mora contributed to this report.
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