Two key U.S. Supreme Court justices indicated they are inclined to uphold the bulk of the Affordable Care Act as the court weighed the fate of a landmark law that provides health-insurance to 20 million people.
Chief Justice John Roberts and Justice Brett Kavanaugh both suggested during oral arguments Tuesday that they won’t vote to strike down the entire law even if the court invalidates a provision that requires people to acquire insurance. A key question is whether the court would “sever” that so-called individual mandate so that the rest of the law remains intact.
“I tend to agree with you that it’s a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place,” Kavanaugh told a lawyer defending the law on behalf of the House of Representatives.
President Donald Trump’s administration is joining Republican-led states in challenging the law, known as Obamacare, which the GOP has been trying to wipe out since it was enacted in 2010.
The mandate originally carried a tax penalty for noncompliance, a provision that was central to a 2012 Supreme Court ruling that upheld the law. A Republican-controlled Congress zeroed-out the tax in 2017, and opponents now say the whole ACA must be invalidated.
Roberts, who wrote the 2012 ruling, signaled he disagreed.
“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,” Roberts said.
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With health care accounting for a sixth of the U.S. economy, the stakes are massive. Advocates for patients, doctors, hospitals and insurance companies are urging the court to uphold the law, warning of chaos should the measure be invalidated in the midst of a pandemic. A ruling is likely by June.
The ACA, signed into law by President Barack Obama, expanded the Medicaid program for the poor, provided consumers with subsidies, created marketplaces to shop for insurance policies, required insurers to cover people with pre-existing conditions, and let children stay on their parents’ policies until age 26.