In this particular case, the Trump administration was asking the justices to strike down all of the Affordable Care Act — eliminating protections for those with preexisting conditions, stripping tens of millions of people of health insurance in the middle of a pandemic, creating a crisis in the health-care sector and instigating yet another financial catastrophe for states. But the Supreme Court — even with three Trump appointees — was having none of it.
“I think it is hard for you to argue that Congress intended the entire act to fall” when it eliminated the individual-mandate penalty, Chief Justice John Roberts said, because “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 is not our job.”
The chief justice told a lawyer for the Trump Justice Department that the administration’s theory allows “somebody not injured by the provision that needs challenging to roam around” the other 1,000 pages of the law and “pick out whichever ones he wants to attack.” Roberts added: “The only reason we have the authority to interpret the Constitution is because we have the responsibility of deciding actual cases.”
Justice Brett Kavanaugh told one of the lawyers defending Obamacare: “I tend to agree with you that it is a very straightforward case” for not striking down the whole law, “meaning that we would excise the mandate and leave the rest of the act in place.”
He said the court has a “strong background presumption” against striking down an entire law because of one provision, “which reflects a long-standing understanding of how Congress works and our respect for Congress’s legislative role.”
With Roberts and Kavanaugh joining the three liberal justices in opposing a wholesale invalidating of the law, Obamacare looks to be here to stay, once again.
This offers some reassurance about the chaos occurring outside the courtroom right now. President Trump is blatantly trying to overturn the results of a free and fair election, and if successful would bring 232 years of constitutional democracy to a halt. As in the ACA case, his politically weaponized Justice Department has gotten involved, while most Republicans avert their gazes.
But it’s hard to see the justices going along with the role Trump wants them to play in what could amount to a clumsy attempt at a coup d’etat: invalidating the election results in several states, declaring that widespread fraud exists despite the absence of evidence, and perhaps upholding a move by Republican state legislators to install Trump as president by fiat.
Trump has reshaped the Supreme Court — but not that much. The conservative justices now have a 6-3 majority over the liberal justices, but the Obamacare arguments made it look as if three factions could emerge on this court: three liberals, four reactionaries (Justices Amy Coney Barrett and Clarence Thomas, and to a lesser extent Neil Gorsuch and Samuel Alito), and two pragmatic conservatives. Roberts and Kavanaugh, both of whom had practical experience in the executive branch before becoming judges, will, hopefully, be the ones to say no to Trump’s coup, if it comes to that — just as they were the ones resisting the massive trauma and turmoil that overturning the Affordable Care Act would cause.
The Trump administration lawyer, Jeffrey Wall, didn’t hide the fact that his argument was exotic. “I understand the sort of reaction that we don’t see this sort of theory very often,” Wall said when Justice Elena Kagan noted that the administration’s argument would “explode” Supreme Court doctrine on who has standing to bring lawsuits.
Wall blithely proposed that the court could ignore its 2012 majority opinion, written by Roberts, upholding Obamacare. “This court is not bound by that holding,” he argued. But the justices seemed disinclined to accept the Trump administration’s invitation to radicalism, and reluctant to throw out a decade-old law that tens of millions of Americans now rely on.
“It does seem fairly clear,” Kavanaugh said Tuesday, “that the proper remedy would be to sever the mandate provision and leave the rest of the act in place — the provisions regarding preexisting conditions and the rest.”
If Kavanaugh, and Roberts, take as dim a view of throwing out the votes of 76 million Americans, this cockamamie coup would have no chance.