WASHINGTON -- Meeting remotely a week after the election, the Supreme Court on Tuesday took on the latest Republican challenge to the Patient Protection and Affordable Care Act.
Two key members of the court said that Congress' decision in 2017 to zero-out the penalty for not buying health insurance did not indicate a desire to kill the entire law.
"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," said Justice Brett Kavanaugh, an appointee of President Donald Trump.
Chief Justice John Roberts, who wrote two earlier opinions preserving the law, stated similar views.
"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," Roberts said.
In the court's third major case over the 10-year-old law, the Trump administration and Republican attorneys general in 18 states want the entire law to be struck down. That would threaten coverage for more than 23 million people, as well as millions of others with preexisting conditions that now would include covid-19.
California, leading a group of Democratic-controlled states, and the Democratic-controlled U.S. House of Representatives are urging the court to leave the law in place.
The Supreme Court could have heard the case before the election, but it set arguments for a week after. The timing could add a wrinkle to the case since former Vice President Joe Biden, who is projected as the election's winner, strongly supports the health care law.
Speaking after the arguments, Biden called the Republican-backed challenge to the law "cruel and needlessly divisive" and vowed to enact changes to expand coverage when he's in office, regardless of the outcome of the Supreme Court case.
Tuesday's arguments, conducted by telephone and lasting two hours, reached back to the earlier cases and also included reminders of the coronavirus pandemic. The justices asked about other mandates, only hypothetical, that might have no penalties attached: to fly a flag, to mow the lawn or even, in a nod to current times, to wear a mask.
"I assume that in most places there is no penalty for wearing a face mask or a mask during covid, but there is some degree of opprobrium if one does not wear it in certain settings," Justice Clarence Thomas said.
The court also spent time debating whether the GOP-led states and several individuals who initially filed lawsuits had the right to go into court.
The suits are against the federal government and U.S. agencies, "but doesn't it really seem that Congress is the one who's injured the individual plaintiffs here? And you can't sue Congress and say, 'Hey, you've put us under this mandate that's forcing us to buy insurance and that's harming us,' right?" Justice Amy Coney Barrett said to Texas Solicitor General Kyle Hawkins.
A ruling that those parties do not have that right, known as legal standing, would result in the dismissal of the case and leave the entire law in place, including the mandate.
Hawkins said the changes made in 2017 eliminated the only reason that the Supreme Court in 2012 said the health care law could survive.
"The mandate as it exists today is unconstitutional," Hawkins said. "It is a naked command to purchase health insurance and as such, it falls outside Congress' enumerated powers." Because the mandate is essential to the law, he continued, "the mandate is inseparable from the remainder of the law."
Questions from Barrett, who joined the court late last month after her nomination and confirmation to replace the late Justice Ruth Bader Ginsburg, did not point to a clear outcome. Trump's other high-court appointee is Justice Neil Gorsuch.
The three Trump appointees have never ruled on the substance of the health care law. Barrett, though, has been critical of the court's earlier major health care decisions sustaining the law, both written by Roberts.
MANDATE'S IMPORTANCE
The current case stems from a change made by the Republican-controlled Congress in 2017 that reduced the penalty for not obtaining health insurance to zero. Without the penalty, the law's mandate to have health insurance is unconstitutional, the GOP-led states argue.
If the mandate goes, they say, then the rest of the law should go with it because the mandate was central to the law's passage.
However, enrollment in the law's insurance markets has stayed relatively stable at more than 11 million people, even after the effective date of the penalty's elimination in 2019.
According to the nonpartisan Kaiser Family Foundation, enrollment dropped by about 300,000 people from 2018 to 2019. Kaiser estimates 11.4 million people have coverage this year.
An additional 12 million people have coverage through the law's Medicaid expansion.
If the case turns on the legal doctrine of severability, it would be in line with other rulings in recent years in which the justices have excised a problematic provision from a law and allowed the rest to remain in force.
In the first big Affordable Care Act case in 2012, Justices Samuel Alito and Thomas voted to strike down the entire law. Roberts and Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor voted to uphold it.
Roberts has endured a torrent of conservative criticism, including from Trump, for his earlier opinions, including the initial case in 2012 that upheld the mandate.
Eight years ago, the law's defenders emphasized that the mandate was the linchpin of the whole law, Roberts said to Donald Verrilli, who represented the House on Tuesday but was the Obama administration's top Supreme Court lawyer in 2012. "But now the representation is that, 'Oh no, everything is fine without it.' Why the bait and switch?" Roberts asked.
The law originally had subsidies and other carrots to entice people to enroll in health insurance, as well as a stick, the penalty, Verrilli said. "It's turned out that the carrots work without the stick," he said.
Verrilli told the justices that to intervene to kill the law would cause disruption in the health care market and a loss of coverage to millions of Americans in the midst of a pandemic.
"To assume that Congress put all of that at risk when it amended the law in 2017 is to attribute to Congress a recklessness that is both without foundation and reality and jurisprudentially inappropriate," Verrilli said.
"In view of all that transpired in the past decade, the litigation before this court, the battles in Congress, the profound changes in our health care system, only an extraordinarily compelling reason could justify judicial invalidation of this law at this late date."
A limited ruling would have little real-world consequence. The case could also be rendered irrelevant if the new Congress were to restore a modest penalty for not buying health insurance.
The arguments were not without their lighter moments, especially in an exchange between Breyer and Jeffrey Wall, Trump's top Supreme Court lawyer, over whether the mandate that Americans "shall" have insurance means anything now that the penalty is gone.
Breyer said "shall" is used in many homes as an earnest request, not a threat.
"In my family, when I tell my kids that they shall do things, that's a command backed by a penalty," Wall said.
Breyer replied, "Well, that's a much more organized family than mine."
A decision is expected by late spring.
Information for this article was contributed by Mark Sherman of The Associated Press and by Robert Barnes, Ann E. Marimow, Amy Goldstein, Paige Winfield Cunningham and Paulina Firozi of The Washington Post.
