With that, the latest effort to derail President Barack Obama’s landmark domestic achievement seemed likely to meet the fate of past endeavors. President Trump and Republicans have never summoned the votes to repeal the measure — even when in control of Congress and the White House. And the court has been unwilling to do the work for them.
Roberts, a conservative who nonetheless became the bane of many on the right when he wrote the 2012 Supreme Court decision upholding the act’s constitutionality, alluded to that in Tuesday’s arguments.
“I think it’s hard for you to argue that Congress intended the entire act to fall … when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Kyle D. Hawkins, the Texas solicitor general marshaling the effort on behalf of 18 Republican-led states.
“I think, frankly, that they wanted the court to do that. But that’s not our job,” he said.
Trump has said either a repeal of the law or the court’s nullification was necessary for a new health-care plan to proceed, but he never offered a proposal. President-elect Joe Biden made it clear in a speech Tuesday that he intends to build upon the program.
“These ideologues are once again trying to strip health coverage away from millions of people,” Biden said, referring to Republican lawmakers.
But he said, “We’re going to build a health-care system that puts you and your families first and that every American can be proud of.”
For challengers, the middle of a pandemic was an inopportune time to bring the case. The court battle gave Democrats an issue to press during the campaign, and a decision that would eliminate all of the law’s popular provisions — such as covering people’s existing medical conditions or providing subsidies for purchasing health insurance — would threaten millions of Americans.
The case came before a court whose conservative leanings were strengthened by Trump’s nominees — Kavanaugh and Justices Neil M. Gorsuch and Amy Coney Barrett.
But Kavanaugh was not coy. He said several times that the court’s precedents — presumably including an opinion he wrote last term — created a strong presumption that a law should be saved if the constitutional infirmity can be easily excised.
“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,” Kavanaugh told Hawkins.
The court’s three liberals have all supported the ACA in the past and gave no reason to think they were wavering about whether it should remain in place.
Justice Elena Kagan, an Obama appointee, said it was strange to bring a lawsuit after Congress had gotten rid of the penalty for noncompliance. “Congress made the law less coercive,” she said, wondering how that could turn it into “an unconstitutional command.”
Roberts, Kavanaugh and the liberals would make a majority of five to save the law, whatever the findings on the other aspects of the suit.
Gorsuch was harder to read, and so was Barrett. At her confirmation hearing just weeks ago, Democrats attempted to make the case for opposing Barrett by saying she was likely to rule against the ACA.
As a law professor before she became a judge, Barrett criticized the court’s two previous decisions upholding the law. She wrote in a law review article that Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Roberts joined the court’s conservatives in saying that the commerce clause of the Constitution did not give Congress the authority to require Americans to purchase health insurance. But the chief justice and the court’s liberals said that the penalty for not buying insurance could be considered a tax and that the law thus was constitutional under Congress’s taxing power.
Barrett sounded skeptical that Congress could reduce the penalty to zero and still have it construed as a tax. But she did not ask questions or show her hand about whether she believed the rest of the law could stand even if that were the case.
Washington lawyer Donald B. Verrilli Jr., who as Obama’s solicitor general had defended Obamacare previously, argued this time on behalf of the House of Representatives and said it should be clear Congress intended for the law to continue without the individual mandate.
In the past decade, health insurance markets have been reshaped, and millions of Americans depend on the ACA and the benefits it provides.
“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 in reality and jurisprudentially inappropriate,” Verrilli said.
“In view of all that has 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,” he said.
Acting solicitor general Jeffrey B. Wall, representing the Trump administration, said the court should follow what Congress did, not “what it may have intended to do.”
“When Congress eliminated the [mandate], it left standing what is now a naked command to obtain insurance,” Wall said — something the court in 2012 said Congress did not have the power to do. It said it “left standing the findings that that mandate is essential to the operation of other parts of the act.”
Tuesday’s case posed three questions: Do the challengers have legal standing to bring the case? Did changes made by Congress in 2017 render unconstitutional the ACA’s requirement for individuals to buy insurance? And if so, can the rest of the law be separated out, or must it fall in its entirety?
The justices spent a lot of time debating whether the individuals or the states were really harmed by a mandate that no longer carries a penalty.
Wouldn’t Americans feel they had to comply with the law, no matter whether there is a penalty, some justices asked. Their hypotheticals included a congressional finding requiring the display of an American flag outside a household, or a weekly lawn-mowing requirement.
Justice Clarence Thomas asked about masks.
“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,” he said, referring to the disease caused by the novel coronavirus whose relentless spread has fueled the pandemic. But if there is no penalty, “Would they have standing to challenge the mandate to wear a mask?”
California Solicitor General Michael J. Mongan, representing the Democratic-led states supporting the law, said it was possible. But the penalty-less mandate in this case, he said, “is entirely toothless.”
He said it would be “deeply problematic” for the states and the nation if plaintiffs “were allowed to leverage this single inoperative provision to tear down hundreds of other provisions” that Congress left in place.
Hawkins disagreed. “The mandate as it exists today is unconstitutional. It is a naked command to purchase health insurance, and as such it falls outside Congress’s enumerated powers.” Because the mandate is essential to the law, he continued, “the mandate is inseparable from the remainder of the law.”
Justice Stephen G. Breyer said the U.S. Code must be filled with instances in which Americans are told they “shall” do something, but there is no penalty.
“Have you ever heard that or used ‘shall’ in respect to a supplication or an entreaty?” Breyer asked Wall.
“No, Justice Breyer. In my family, when I tell my kids that they shall do things, they’re — that’s a command backed by a penalty,” Wall said.
“Well, that’s a much more organized family than mine,” Breyer replied.
Roberts reminded Verrilli that eight years ago, he and the law’s defenders said the mandate was crucial to the law.
“But now the representation is that, ‘Oh no, everything is fine without it.’ Why the bait and switch?” Roberts asked.
Verrilli said the mandate was crucial at the time to create new insurance markets, with subsidies as “carrots” and the requirement to either purchase insurance or pay a penalty a “stick.”
“It’s turned out that the carrots work without the stick,” he said.
Roberts remembered the 2012 debate about a different vegetable, and whether Congress’s ability to force consumers to buy insurance could also force them to purchase healthier food.
“We spent all that time talking about broccoli for nothing?” Roberts asked.
The case is California v. Texas. A decision is likely to take months.
Paulina Firozi and Erica Werner contributed to this report.
Justices urged to defer to Congress and uphold ACA
In closing out the two-hour argument, the lawyer defending the ACA urged the justices to defer to Congress in preserving the health-care law that has provided access to affordable insurance and other benefits for millions of Americans.
Mongan said Congress and President Trump understood in 2017 that the elimination of the tax penalty was intended to allow individuals to “freely choose whether to buy health insurance.”
“Congress made it unenforceable but chose to leave every other provision in place,” Mongan said.
While the ACA has been controversial, Mongan told the justices that the court “should not invalidate any more of Congress’s work than absolutely necessary.”
Breyer takes issue with interpretation of ‘shall’
Breyer tangled with Wall, the acting solicitor general representing the Trump administration, over the meaning of the ACA’s provision that says Americans “shall” buy health coverage.
Breyer argued the “shall” was “precatory” language, similar to other congressional measures asking people to buy war bonds or planting a tree. He was skeptical of Wall’s argument that the mandate is a burden on people even without the accompanying tax penalty.
“How is it you know this mandate just by itself without any penalty is something more than a supplication or an entreaty?” Breyer asked.
Wall emphasized that the law uses the phrase “shall have coverage” rather than merely encouraging people to have coverage.
Breyer pushed back, asking Wall if he ever uses the word “shall” when asking a family member to do something.
Wall said his children understand there are consequences for not responding when he says they “shall” do something.
“Well, that is a much more organized family than mine,” Breyer responded.
Alito compares mandate to a plane continuing to fly without one part
In questioning the attorney for the Trump administration, Alito noted that the “sea change that has occurred” since the first time the court considered the ACA’s constitutionality is Congress’s view on the individual insurance requirement.
“In the first case, there was a strong reason to believe the individual mandate was … essential to keep the plane flying. Now the part has been taken out and the plane has not crashed,” he said. “How would we explain why the individual mandate in its present form is essential to the operation of the act?”
Acting solicitor general Jeffrey B. Wall replied that, without the fine removed for flouting that part of the law, the mandate “is just a naked command.”
Roberts skeptical of allowing challengers to ‘roam around’ the ACA
Roberts suggested that allowing the challenge would dramatically expand the court’s practice when it comes to finding that a party has legal standing to bring a lawsuit.
He questioned whether the court should let “somebody not injured” by a provision “roam around through those thousands of pages” of the ACA and “pick out whichever ones” they want to take on.
Acting solicitor general Jeffrey B. Wall, representing the Trump administration, said the court would not be opening the floodgates or creating a massive loophole in its past practice. But he said Congress had “left standing the naked command to obtain insurance” when it eliminated the penalty.
“Those choices have legal consequences whether or not Congress foresaw them,” Wall said.
Gorsuch presses ACA challengers about their specific injury
Texas Solicitor General Kyle Hawkins, representing Republican state officials, said the individual mandate is no longer valid under Congress’s taxing authority because it “does not raise revenue for the government.”
Allowing the measure to stand, he said, would mean there are no limits to Congress’s powers.
Gorsuch seemed skeptical about the injury to the states challenging the measure, asking “who exactly they want me to enjoin” and what they want the court to block them from doing?
Hawkins urged the court to declare the provision unconstitutional and to find that it cannot be separated from the overall law.
Kagan asks: ‘How does it become more of a command?’
Kagan pointed out to Texas Solicitor General Kyle Hawkins, arguing for Texas and the other GOP states, that the Supreme Court held in 2012 that the ACA was not an unconstitutional command in its requirement that most Americans buy health insurance.
That “is what allowed the ACA to remain in existence all this time,” Kagan said.
After Congress changed tax law in 2017 to reduce the mandate’s penalty to zero, “the only thing that’s changed is something that made the law less coercive. … How does it become more of a command?” she asked.
Sotomayor says there’s a ‘problem’ with Texas’s argument on standing
Sotomayor said there’s a “problem” with Texas’s argument for why it has standing to challenge the ACA.
She expressed skepticism that people were harmed when Congress zeroed out the penalty but kept the mandate in place. It requires one to assume that more people would buy coverage without the penalty than would buy coverage when the penalty was in place, she told Texas Solicitor General Kyle Hawkins.
And Texas would have to show that people eligible for Medicaid or the Children’s Health Insurance Program are harmed, because those are programs run by the state, she said.
“You have to prove that a small number would include people who didn’t enroll in Medicaid or CHIP when it was a legal requirement, but they would do so now after they’re told there is no penalty for it,” Sotomayor said.
“At some point, common sense, seems to me, would say, ‘Huh?’ ” she added.
Breyer warns of onslaught of litigation to follow ACA challenge
Breyer warned that allowing Republican officials to clear the initial hurdle to challenge the law would open the door to litigation over statutes involving, for instance, the purchase of war bonds or the planting of trees.
Texas Solicitor General Kyle D. Hawkins, the attorney representing the Republican states seeking to overturn the ACA, said the health-care law was not a mere suggestion from Congress, but a command by the U.S. government even in the absence of a penalty.
“You have to purchase health insurance,” Hawkins said, and in this case, the government has decided which type of insurance “would be best for you.”
That mandate, Hawkins said, “is certainly subject to challenge.”
Barrett questions the basis for the law’s constitutionality in 2012
Barrett questioned whether the mandate is constitutional now that its accompanying penalty is gone.
“Why couldn’t we believe when Congress zeroed out the tax that it was no longer a tax because it generated no revenue?” she asked.
Verrilli pointed to comments by President Trump and Republican members of Congress that eliminating the penalty effectively got rid of the mandate — and argued that made clear the rest of the ACA can exist without it.
“I do think there is wide agreement that those kinds of statements can be looked to as evidence of the meaning that a provision is capable of bearing,” he said.
Roberts expresses skepticism about argument that parts of the law cannot be separated
Addressing the attorney representing the Republican states seeking to overturn the ACA, Roberts pushed back against the argument that parts of the law cannot be severed, even if one section is found unconstitutional.
“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 [for not buying insurance] to zero did not even try to repeal the rest of the act,” Roberts said. “I think frankly, they wanted the court to do that. But that’s not our job.”
Kavanaugh suggests a ‘straightforward case for severability’
Kavanaugh told the lawyer for the House that it is difficult to justify the legality of the individual mandate under Congress’s taxing authority now that the penalty has been reduced to zero.
But Kavanaugh said he is inclined to agree that this is a “straightforward case for severability.”
Donald B. Verrilli Jr., representing the House, agreed, telling Kavanaugh that when Congress zeroed out the tax, lawmakers did not think it was essential to the overall operation of the health-care law. In the last term, the court embraced the concept that when it finds an unconstitutional element in a law, it must look carefully at whether the rest of the measure can remain in place. Kavanaugh wrote one of the two opinions.
Sotomayor touches on question of whether the law could stand even if part were taken out
In questioning Donald B. Verrilli Jr., the attorney for the House, Sotomayor touched on a question at the heart of the case: whether Congress intended the rest of the ACA to remain when it reduced to nothing the tax penalty for not carrying insurance.
“Because there could have been many choices between invalidating the entire ACA and just zeroing out the tax … Congress’s choice was just zero out the tax, correct?” Sotomayor said.
Verrilli agreed, saying, “Your honor, there were efforts to repeal the entire ACA. Those efforts failed in the Senate. They were voted down. So we know that the effort to repeal the entire ACA was voted down.”
Roberts has an exchange about ‘carrots and sticks’
When Donald B. Verrilli Jr., attorney for the House of Representatives, came before the court, Roberts focused on whether it had been wrong in the 2012 ACA case to regard the law’s requirement that most Americans carry health insurance as pivotal.
“Was Congress wrong when it said that the mandate was the key to the whole thing?” Roberts asked.
Verrilli replied that Congress had made “a predictive judgment” that the desire for more Americans to buy health insurance required both carrots, in the form of good insurance coverage, and a stick, in the form of a penalty for not getting coverage.
“I don’t think there’s any doubt that in 2010, Congress thought that [the] stick was important, but it’s turned out that the carrots work without the stick,” Verrilli said.
Even without enforcement of the penalty under 2017 changes in tax law, he said, “the market will remain stable.”
Thomas presses Verrilli on his flip-flop on the mandate penalty
Justice Clarence Thomas pressed Donald B. Verrilli Jr. on why he argued in 2012 that the penalty for lacking coverage was central to the Affordable Care Act but now argues that the law can function without it.
Verrilli, who is defending the ACA on behalf of the House of Representatives, argued in that 2012 lawsuit that requiring Americans to buy coverage was crucial for the rest of the law to work as intended. Now Verrilli is asking the court to uphold the rest of the health-care law even if it strikes down the mandate.
“When this case came up some years ago, this provision was the heart and soul of the ACA,” Thomas said. “I know the assessment has changed, but the provision hasn’t changed except for the penalty.”
Verrilli pointed to a 2017 report from the Congressional Budget Office, which said repealing the penalty would have less effect than originally expected on the uninsured population.
“Congress asked the CBO what would happen if they zeroed out the tax,” Verrilli responded to Thomas. “The CBO came back and said the effect on the market would be the same either way. That’s the context in which Congress acted.”