Why Obamacare might survive the Supreme Court

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WASHINGTON — The Supreme Court might not be as ready to wipe out the full 2010 health care law as its ideological balance would suggest, even if a new conservative justice fills the seat of the reliably liberal late Justice Ruth Bader Ginsburg.

The Trump administration and a coalition of Republican-led states have asked the Supreme Court to strike down President Barack Obama’s signature law that expanded insurance coverage to more than 20 million people, including popular provisions such as required coverage of preexisting medical conditions.

But such a sweeping outcome would cut against the court’s traditional legal approach, conflict with decisions from just last term and defy the current reality about how the law continues to work in the real world, legal experts with deep working knowledge of the Supreme Court said.

“This might be a case that will surprise some people who think it’s just going to attract the normal political alignments,” Roman Martinez, a high court litigator at Latham & Watkins law firm and a former law clerk for Chief Justice John G. Roberts Jr., said during a discussion hosted by Georgetown Law’s Supreme Court Institute.

The case is nonetheless at the heart of the roaring presidential campaign and the divisive Senate fight to confirm a new Supreme Court justice. The court hears oral argument on the case Nov. 10 and would decide before the end of the term at the end of June.

The case centers on Republicans’ move to use the 2017 tax overhaul to nix the law’s penalty for most Americans who don’t get health coverage. The Trump administration and the Republican-led states argue that move made the mandate to buy insurance unconstitutional, and lower courts agreed.

Yet the fate of the law hinges on a separate legal argument called “severability,” or whether a smaller part of the law that is found unconstitutional can be wiped out while leaving the rest of the law intact. Trump and the challengers say that the individual mandate is such a central provision to the whole 2010 law that if it he Supreme Court finds it unconstitutional that in turn means the remainder of the 2,000-page law “must also fall.”

Martinez characterized that argument on severability as “a very uphill battle,” as did veteran Supreme Court litigator Paul Clement of Kirkland & Ellis, who is on Trump’s list of possible Supreme Court picks. Georgetown law professor Martin Lederman said the argument “seems preposterous.”

That’s because traditionally the federal courts look at what Congress intended to accomplish with a law, experts say in dozens of briefs in the case.

The House and other defenders of the law in say that intent is clear here because Congress eliminated the penalty for individuals who don’t purchase health insurance but left the rest of the 2010 law intact and operating for the past three years.

Trump and Republican lawmakers at the time described the 2017 change as simply getting rid of the individual mandate portion of the law, and Congress has not repealed the law despite numerous Republican attempts. The court previously upheld the constitutionality of the 2010 law.

On top of that, Supreme Court rulings from the last term, which ended in June, underscore that the justices strongly presume that one unconstitutional part of a law can be carved out to let the rest of the law stand.

Justice Brett M. Kavanaugh, a Trump appointee, made that point most clearly in part of a majority opinion that was joined by conservatives Roberts and Justice Samuel A. Alito Jr. In the case, the court found a 2015 provision about robocalls unconstitutional but left the rest of the law in place.

“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Kavanaugh wrote.

The four liberal justices agreed on the severability parts in both cases.

And the court, in part of a majority opinion by Roberts joined by Kavanaugh and Alito, struck down a provision of the 2008 Dodd-Frank financial reform law dealing with the Consumer Financial Protection Bureau but left the underlying law intact.

“We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today,” Roberts wrote.

Before Ginsburg’s death, legal experts expected at least Roberts to join the liberal wing to provide enough votes to uphold the bulk of the law.

But with only eight justices, the other conservatives could stick together for a 4-4 vote, essentially upholding a lower court ruling that struck down the entire law. But the Kavanaugh opinion indicates the current case about the 2010 health care law could be resolved on severability grounds even if the court is still shorthanded with the current eight members, Martinez said.

Under that approach, even if the court finds the individual mandate unconstitutional, it would really make no practical difference for Americans because the penalty is now zero.

Clement pointed out that the federal government, while arguing in this case that the whole law is unconstitutional, is not acting consistently with that view, which gives “a little air of surrealality around the severability issue.”

Federal agencies right now are exercising authority under provisions of the law, known as the Affordable Care Act, that are unrelated to the individual mandate. And the Supreme Court ruled in April, in a case Clement argued, that the government must pay health insurance companies as part of a key program in the 2010 health care law.

Clement said that ruling means the government is sending “a bunch of very large checks” to health insurers under the statute and yet never brought up the individual mandate issue.

“The fact that we get all the way through the Maine Community Health case and the federal government never stood up and said, “Oh, by the way, the whole statute is unconstitutional and must fall,” Clement said.

Clement represented challenges in the first Supreme Court challenge to the 2010 law, and argued that mandate was unconstitutional and therefore the whole law must fall. But he said that was back when the law was new, and the government argued that the mandate was an essential part of making the whole law work.

“But to make that argument in the context where Congress, after it was done with its 2017 work, left the whole statute in place with a zero tax mandate? Well that’s just a very different argument,” Clement said. “And it seems like a tougher argument.”

In a brief in the case focused on severability, a group of law professors pointed out that the two most recent statutes to amend the 2010 law — titled the CARES Act and the Families First Act, both enacted to address the current COVID-19 pandemic — rely on the health law’s existence, expand on its insurance benefits, and refer to it in numerous provisions.

“If Congress in 2017 did not intend the rest of the ACA to exist with a toothless mandate, it would not later have relied on it as the backbone of its public-health response to a global pandemic,” the professors, who disagreed with each other in the original constitutional challenge to Obamacare, wrote.

Veteran Supreme Court litigator Paul Smith of the Campaign Legal Center noted that it’s conceivable that a new justice could reshape this case. But Smith said the severability issue “ought to not be difficult and it may well be that the court could agree around that and make this an easy case.”

“On the other hand, if you’ve tried to identify the cases on the docket that might turn up the addition of a new justice,” Smith added, “this might be that case.”


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