Supreme Court Hears Oral Arguments in Affordable Care Act Case

What’s the story?

• The Supreme Court heard highly anticipated oral arguments on Tuesday in a case concerning the constitutionality of the Affordable Care Act (ACA or Obamacare) and whether the law must be struck down. The nine justices heard two hours of arguments by teleconference in the case, and will issue a decision in early 2021.
• The case, known as California v. Texas, deals with whether the ACA’s mandate that Americans obtain health insurance coverage was rendered unconstitutional by the enactment of the Tax Cuts and Jobs Act, which zeroed out the penalty for not complying with the individual mandate; and if it is unconstitutional, whether the rest of the ACA can stay in effect because the provision is severable from the rest of the law.

What did the justices say?

• Chief Justice John Roberts told Texas Solicitor General Kyle Hawkins that Congress leaving the rest of the ACA intact while lowering the individual mandate penalty to zero was “compelling evidence” on the question of severability and added:

Roberts: “General, you talk about the findings in the legislation and treat them as if they were an inseverability clause, but it doesn’t look like any severability clause anywhere else in the rest of the U.S. Code to me.”

Texas Solicitor General Kyle Hawkins: “Well, Your Honor, there’s certainly no magic words requirement for a severability clause or an inseverability clause. What we see in 18091 is a repeated emphasis by Congress that the mandate is essential to what they were seeking to accomplish.”

• Justice Brett Kavanaugh told Hawkins that “looking at our severability precedents, 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, the provisions regarding pre-existing conditions and the rest.” Kavanaugh added the following to an attorney representing Democrats in the House of Representatives:

Kavanaugh: “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, reading our severability precedents.”

• California Solicitor General Michael Mongan responded to questions from Justice Clarence Thomas and Justice Stephen Breyer about the federal government’s theory of standing by inseverability:

Mongan: “So it’s a novel theory. It’s never been endorsed by this Court. It would create a fairly massive loophole in Article III because, in the ACA context, for example, any American who’s regulated by any provision of the ACA, biosimilars or the menu calorie count provision would be able to challenge 5000A without showing that that provision actually harmed them.”

• Justice Thomas asked the Dept. of Justice’s Acting Solicitor General Jeffrey Wall about the inseverability issue and whether it should be considered at the merits stage instead of the standing stage:

Wall: “The government’s view is yours, Justice Thomas. The other side, my friends on the other side, keep referring to standing through inseverability. That’s not right. Those two are distinct things. The Plaintiffs here want insurance plans that they cannot get, that they used to have, but for the ACA. That’s an Article III injury. It is an injury in fact, in the real world for them right now. They want different kinds of insurance. On the merits, they have arguments about why those insurance reform provisions can’t be enforced against them. And their argument on the merits is that the provisions are tied, as a matter of statutory interpretation, to the mandate and the mandate is unconstitutional.”

— Eric Revell

(Photo Credit: ACA: iStock.com / YinYang | SCOTUS: iStock.com / Timothy Epple)