Kavanaugh, Roberts Suggest They Won’t Strike Down Affordable Care Act In Supreme Court Hearing

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TOPLINE

U.S. Supreme Court Justice Brett Kavanaugh and Chief Justice John Roberts made comments Tuesday implying they’re likely to uphold the Affordable Care Act as the fate of the landmark health care act was argued before the court, suggesting it is unlikely that a majority of justices will ultimately vote to strike down the ACA even if its individual mandate provision is declared unconstitutional.

KEY FACTS

The Supreme Court heard Texas v. California Tuesday, which concerns whether the individual mandate in the ACA, which imposed a penalty on Americans who didn’t purchase health insurance, should be declared unconstitutional after Congress invalidated the mandate by getting rid of the tax penalty in their 2017 tax legislation.

Conservative state attorneys general and the Trump administration argue that the individual mandate is unconstitutional, and because of that the entire ACA should be struck down, because they believe the individual mandate cannot be severed from the rest of the law without the entire law being invalidated.

Kavanaugh said during the hearing that the case appeared to be a “straightforward case for severability” based on the Supreme Court precedent, and “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,” including protections for preexisting conditions.

“Congress knows how to write a severability clause and that’s not what we see here,” Kavanaugh said, suggesting that Congress in 2017, when it got rid of the tax penalty but voted against repealing the ACA, “wanted to preserve” the ACA’s protections and did not want to invalidate the entire law.

Roberts, too, suggested that the court striking down the law when Congress wouldn’t “is not our job,” and said it’s “hard to argue” that Congress wanted the ACA to be invalidated entirely when it got rid of the individual mandate.

Should Kavanaugh and Roberts vote against striking down the entire ACA, along with the court’s three liberal justices, the law would be upheld, even if just the individual mandate is declared unconstitutional.

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WHAT TO WATCH FOR

The Supreme Court is unlikely to issue its decision on the ACA case until 2021, meaning it will still be a few months before the court’s opinion is ultimately clear. Though the Trump administration is in court trying to invalidate the law and the ruling will likely come out after Inauguration Day, the case will still move forward once Joe Biden becomes president, as even if the Justice Department removes itself from the case, it is still being brought by state attorneys general who still want the ACA repealed. If Roberts and Kavanaugh change their opinions and the court does ultimately rule against the ACA, the health care act’s fate would likely rest with Congress, which could ultimately attempt to save the law by taking action to legally separate the individual mandate from the rest of the law or strike it down themselves. Whether that would actually happen, however, would likely be contingent on the results of Georgia’s runoff election in January, which will determine whether Republicans retain their Senate majority or if Democrats will take control of both chambers of Congress.

Across Forbes