The Hill

A New Nail Biter: The ACA May, or May Not, Survive

ACA Protests
Protesters defend the Affordable Care Act outside the Supreme Court hearings. GETTY IMAGES / Astrid Riecken

The chances that the Affordable Care Act (ACA) will survive its latest US Supreme Court challenge are looking up. At least that’s how it now appears. 

After several hours of arguments via teleconferencing on Tuesday, the ACA appears to have the support of two of the court’s conservative justices.

According to the Washington Post , Chief Justice John Roberts and Justice Brett M. Kavanaugh seemed to have sided with upholding the law. Their position appears to be that even though Congress eliminated the ACA’s individual mandate penalty in 2017, it did not indicate that it wanted to repeal the entire law.

“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,” the chief justice told attorney Kyle D. Hawkins from the bench. Mr. Hawkins, the solicitor general of Texas, is the lawyer representing 18 Republican-led states in the case against the ACA, the Post reported.

“I think, frankly, they wanted the court to do that. But that’s not our job,” said the chief justice.

Advocates for the law did not escape Chief Justice Roberts’ skepticism. Referring back to 2012 -- when he cast the key vote that upheld the ACA during its first court challenge -- the chief justice said that the law’s advocates had argued back then that the mandate [which required citizens to have insurance or pay a penalty] was the key to the whole act. 

“Everything turned on getting money from people forced to buy insurance to cover all the other shortfalls in the expansion of health care,” the chief justice said to attorney Donald Verrilli, who is representing states that favor the ACA, according to Politico

“But now the representation is that, oh, no, everything’s fine without it. Why the bait and switch?” he asked. 

For his part, Justice Kavanaugh said that court precedents create a strong presumption that a law should be saved if the constitutional infirmity can be easily removed, the Post reported.

“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,” Justice Kavanaugh told Mr. Hawkins.

According to the Post , there are three questions the court must decide: 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? If so, can the rest of the law be separated out, or must it fall in its entirety?

How those questions are answered will decide the law’s fate. Justices Neil Gorsuch and Amy Coney Barrett -- two of President Donald Trump’s appointees, along with Mr. Kavanaugh -- did not offer any insight as to where they stand. Justice Barrett, who was doggedly questioned by Democratic senators during her recent confirmation hearing about her position on the ACA, but to no avail, was also hard to read, the Post reported .

However, while teaching law and before moving to the bench, she had criticized the court’s two previous decisions supporting the ACA. In a law review article, she said that Chief Justice Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

If Chief Justice Roberts and Justice Kavanaugh side with the court’s three liberals - Justices Elena Kagan, Stephen G. Breyer and Sonia Sotomayor – the law would withstand the latest challenge.

The ACA, President Barack Obama’s signature health care law, has helped 22 million Americans purchase insurance. A new study published in the 

journal Applied Economic Perspectives and Policy found that, since Medicaid was expanded 10 years ago by a provision of the ACA, there has been a larger reduction in the number of uninsured low-income rural residents – who generally support President Trump -- than among their urban counterparts.

The Trump administration, which has joined the current lawsuit, came into office with the slogan of repeal and replace the ACA. In the early morning hours of August 27, 2018, the Republican-led Senate’s attempt to repeal the law fell one vote short when the late Sen. John McCain (R-Ariz), using a dramatic thumbs-down gesture, voted against repeal. The administration has since been promising to announce a new health care law but has yet to produce one.

Meanwhile, President-elect Joe Biden vowed this week to work with Congress to “dramatically ramp up healthcare protections” for Americans, according to Politico

Mr. Biden plans to build on the ACA and would create a public insurance option to compete with private insurance. His plan would also increase subsidies for middle-class consumers. 

“I promise you this beginning on Jan. 20, that Vice President-elect (Kamala) Harris and I, we’re going to do everything in our power to ease the burden of health care on you and your family,” he said.

But exactly how much a President Biden can accomplish on the health care front may well depend on the outcome of the Georgia Senate races and who gets control of the Senate.

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