(CNN) –– Chief Justice John Roberts and Justice Brett Kavanaugh suggested Tuesday that it was not up to the high court to completely overturn the lengthy 900-page Affordable Care Act, also known as Obamacare. The foregoing, even if one or more provisions are considered unconstitutional. This indicates that key parts of Obamacare will survive the latest legal challenge.
Precisely, the Supreme Court heard oral arguments to discuss whether or not to invalidate the backbone of America’s healthcare system. A process that occurs while the pandemic advances in the country. And amid President Donald Trump lashing out at the election results, as Joe Biden prepares for a new government.
What is discussed in the Supreme Court
The Trump administration and several Republican-led states are asking the Supreme Court to repeal Obamacare, just 10 years after its passage. Such a move could affect millions of Americans. If Roberts and Kavanaugh, at the very least, sided with the court’s three liberals, the law would remain intact.
For his part, Roberts simply said that if Trump and the Republicans wanted to end the law, they could have.
“I think it’s hard to argue that Congress intended to repeal the entire law if the mandate was overturned, when the same Congress that reduced the penalty to zero did not even attempt to overturn the rest of the law,” Roberts told the attorney represents Texas, one of the states fighting Obamacare.
“I think, frankly, they wanted the court to do that, but that’s not our job,” Roberts added.
At another point, Kavanaugh told a defense attorney that he is inclined to agree with his position that some provisions could be overturned if necessary.
Is there the necessary legal damage? Key question about Obamacare
Roberts and other justices began by asking whether individual plaintiffs and Republican-led states can show that they have the necessary legal damage that allows them to take the Obamacare challenge to court. This discussion of legitimation is a specific legal concept, but it could be critical.
Obamacare supporters say that those who sued the law have no legal harm. This is because, they argue, after Congress amended the law in 2017, there is no longer a penalty for not buying health insurance. Attorneys for Democratic-led states and the House of Representatives say the court should therefore dismiss the challenges.
But several of the judges put forward hypotheses suggesting that even if there is no longer a penalty for not following a regulation, there could still be harm. Which, in turn, suggests that a challenge could be filed.
For example, Judge Clarence Thomas asked about a possible regulation requiring the use of masks. Even if there is no penalty for not doing it.
“What if someone violates that mandate, let’s say in terms similar to the mandate here but without sanction, would they have standing to challenge the mandate to wear a mask?” Asked Thomas.
What is at risk
So far, justices have kept a low profile, avoiding any meaningful involvement in post-election litigation. However, all eyes will be on the Supreme Court as it evaluates the most controversial case of the period. The Obamacare decision could affect millions of Americans. Among them, approximately 20 million who were covered on the law exchanges and the expansion of Medicaid to low-income adults.
Popular provisions that protect people with pre-existing conditions are also at risk. As well as those that allow parents to keep their children in their health insurance plans until they are 26 years old.
It is the third time that Obamacare reaches the Supreme Court
The dispute pits California and other Democratic-led states against Texas and Republican-led states plus the Trump administration.
It is the third time the court has evaluated a significant challenge to the law. However, the stakes this time around are higher given the implications of covid-19. Also the catastrophic deaths and current burdens facing the health care sector.
In 2012, Roberts cast the key vote in a 5-4 decision that surprised Republicans. The judge held that Obamacare’s individual coverage mandate was valid under the tax power of Congress. For 2017, the Republican-led Congress reduced the tax penalty for the uninsured to zero as part of the year-end tax reform.
So the Republican-led states sued. Their argument is that since the mandate is no longer tied to a specific tax penalty, it lost its legal foundation. They also noted that because the individual mandate was intertwined with a multitude of other provisions, the entire law should be repealed. Including protections for people with pre-existing conditions.
Last December, a federal appeals court held that the individual mandate was unconstitutional. But critically, he questioned whether the rest of Obamacare, even the non-mandate provisions, could stand firm.
The Arguments Against Obamacare
In court documents, Texas Attorney General Kyle D. Hawkins said the 2017 change made the mandate “impossible to fairly interpret” as a tax. So it concluded that it is unconstitutional. He argued that not only would the provisions regarding pre-existing conditions fall, but also the entire mass law.
Hawkins said the individual mandate serves as the “operational core” of the law. So without it “other important provisions shift the benefits and burdens of healthcare to the entire industry without rhyme or reason.”
The Trump administration has largely sided with Texas. Although he presented a relatively new argument: the entire law should fall, but the ruling should apply only to the 18 states that presented the challenge. Texas told justices it believes the restricted appeal from the Justice Department would cause chaos. “Invalidating the ACA in a more limited geographic area would force citizens of the defendant states to heavily subsidize other states with their general tax dollars,” said Hawkins.
What Amy Coney Barrett said
During the 2016 presidential campaign, Trump repeatedly said he would have an alternative to Obamacare, but never gave any substantive details. Its three judges appointed to the Supreme Court ––Neil Gorsuch, Kavanaugh y Amy Coney Barrett–– will play a key role in deciding the future of the law.
Before taking office, Barrett was critical of Roberts’s rationale for keeping the law. But during his confirmation hearings last month, he declined to say how he could decide on the dispute over Obamacare.
In court, Barrett also focused on the intent of Congress in 2017.
“So what should we do about the fact that Congress didn’t repeal the provision?” I ask.
The Obamacare severability issue
Supporters of the Affordable Care Act believe that the Supreme Court must respect the entire law. But, should he override the mandate, they emphasize that Congress never sought to override all of Obamacare when it made changes in 2017.
“Congress made it very clear that it did not intend to incur the deep costs that would have resulted from the repeal of other provisions of the ACA,” wrote California Attorney General Michael Mongan in court reports.
“The circumstances here make it inconceivable that Congress would have wanted a statute on which millions of people depend for their health care and sustenance to disappear overnight with the wave of a judicial wand,” he added.
Former US Attorney General Donald Verrilli argued on behalf of the House of Representatives that the two individuals and the Republican-led states do not have the legal prejudice necessary to present the challenge. He argued that now that Congress has reduced the penalty to zero, those who refuse to buy health insurance no longer face a tax for not doing so.
“The most transformative public health law of the last half century”
“There is no threat – much less a credible one – that the federal government will take any action against individual plaintiffs if they do not purchase insurance,” Verrilli said. He added that any damage to the states is speculative.
He also stressed that the challenges “ask this Court to invalidate the entirety of the most transformative public health law of the last half century because they see a single sentence as unconstitutional.”
During the previous judicial period, the judges twice relied on the doctrine of divisibility to save laws, after finding individual provisions unconstitutional. In one case, Roberts wrote: “We think it is clear that Congress would prefer that we use a scalpel rather than an excavator.”
In another case, Kavanaugh insisted on his belief that the court in the case at hand should work to “save rather than destroy” a law with an unconstitutional provision.
Legal experts doubt judges will repeal all Obamacare
Richard Garnett, a Notre Dame law professor close to Barrett, said in a statement that he doubted the court would invalidate the entire law. aAlthough, in 2017, Congress reduced the sanction to zero for not complying with the so-called ‘individual mandate’, there is very little chance that most magistrates will conclude that this measure makes the entire ACA –– including parties related to coverage for pre-existing conditions–– is unconstitutional, ”he said.
And although Biden was vice president when the law was passed, experts say the fact that the Senate remains a Republican majority will complicate his efforts to save Obamacare.
“Biden would need to pass a law to put the paws case out on the street,” said Nicholas Bagley, a law professor at the University of Michigan School of Law.
A “simple” option to compose
Bagley explained that such a law would be “simple” to write. “Congress could increase the tax penalty to a nominal amount (say, $ 1). It could also eliminate the language that tells people to buy insurance. Or you could add a severability clause. Any of those laws would end the case, “he said.
“If Republicans still control the Senate after these elections, they are unlikely to cooperate. What the Supreme Court says will probably stand. “
Near the end of the arguments, Acting Attorney General Jeff Wall, perhaps making the Trump administration’s last significant argument before the Supreme Court in a highly successful case, said that the individual mandate “exceeds the powers listed by Congress and that the court should leave it to the “political powers to decide how to proceed.”
CNN’s Tami Luhby, Austen Bundy, Hannah Rabinowitz and Daniella Mora contributed to this report.