A protester holds a sign in support of Obamacare outside the Washington Supreme Court.
Andrew Harrer | Bloomberg | Getty Images
The landmark health legislation known as Obamacare is being put to the third test this week in front of the most conservative judicial panel in decades before the Supreme Court.
The Supreme Court will hear arguments on Tuesday contesting the constitutionality of President Barack Obama’s 2010 Affordable Care Bill.
The case was that Main focus of the Democrats during Justice Amy Coney Barrett’s confirmation hearings last month. Democrats warned that ratifying Barrett by providing a 6-3 majority of Republican-appointed judges would effectively doom the law to fail.
When the court knocks down the law More than 20 million Americans could lose health insurance they received according to its provisions. The health insurance industry, which has been around the law for 10 years, could be turned on its head.
The spreading coronavirus pandemic, which has killed more than 230,000 people in the US since it emerged late last year and sparked a recession that has thrown millions of people out of their health insurance, has stepped up the use of the fight.
A decision is expected by the end of June.
The case was submitted by a Texas-led Red States consortium and is supported by the Justice Department headed by President Donald Trump. California and other blue states defend the law.
The dispute is discussed just a week after the presidential election between Trump and President-elect Joe Biden. It shows the huge political differences proposed by the two men.
While Trump went to court to abolish the law, Biden, who played a role in its passage, focused his health policy on maintaining and empowering Obamacare. If the court knocks it down, Biden will likely have few options to revive a new version of it and little time.
Democrats are expected to retain control of the House of Representatives, but their path to a Senate majority is narrow, and control of the upper body of Congress is likely to come from two special elections in Georgia due in January.
The Supreme Court reviewed the Affordable Care Act twice in 2012 and 2015 and found it lawful both times. The impending case raises a new question about the constitutionality of the law’s individual mandate provision that requires most Americans to purchase health insurance or pay a fine.
The Supreme Court upheld the individual mandate in the 2012 National Federation of Independent Business v. Sebelius case. In this case, Chief Justice John Roberts disagreed with the Obama administration, which argued that the mandate was a punishment – but Roberts affirmed that the provision was effective is a tax.
In 2017, Republicans in Congress, anxious to eliminate Obamacare since signing, set the individual mandate penalty to $ 0.
Since the penalty is $ 0, Texas and the other red states have argued that it is no longer legal as a tax. Since the individual mandate is now unconstitutional, the entire law must be removed.
A Texas federal district court and the 5th US appeals court Page with the red states and said the individual mandate was unconstitutional. The district court stated that as a result, the entire law must fall, while the appeals court did not finally address the latter point.
“The individual mandate is unconstitutional because it can no longer be understood as a tax, and there is no other constitutional provision that justifies this exercise of congressional power,” said the appeals court.
The panel added that it was an open question whether the mandate was “severable” or could be separated from the rest of the law.
“It may still be that none of the ACA can be severed from the individual mandate even after this investigation is completed,” the majority said. “It may be that the entire ACA is separable from the individual mandate. It can also be that part of the ACA is separable from the individual mandate and others are not.”
Health care activists fear that the court will finally repeal the law by a majority of 6 to 3.
“I’m really nervous,” said Wendell Potter, a former Cigna executive who has been advocating liberal health reform for a decade.
“There has been so much close conversation, certainly when John McCain saved the day a few years ago,” said Potter, referring to the late GOP Senator’s 2017 vote on the waiver of the individual mandate and other provisions of the law. “This threat is really worrying given the change in the composition of the court.”
Barrett, an academic for most of her career, criticized the Supreme Court’s reasoning for upholding Obamacare in previous cases despite not addressing the legal issue in the present case. She said during her hearings that she would be open about the case.
In contrast to the questions raised in the earlier cases, the views on separability are clearly not partial. Last term, in a unrelated Obamacare case, three Court Conservatives suggested that their views on separability might be favorable to health Democrats.
Justice Brett Kavanaugh, all in one Joined opinion of Roberts and Justice Samuel Alitowrote that courts in general should separate an infringing provision from a broader law when the rest of the law can function independently. Kavanaugh wrote that it was “quite unusual for the rest of a law” not to be able to do so.
“Constitutional disputes are not a gotcha game against Congress, where litigants can commit a discreet constitutional error in a law in order to get rid of all otherwise constitutional law,” wrote Kavanaugh.
Andrew Bab, partner at law firm Debevoise & Plimpton and co-head of the health and life sciences group, said another key factor in the deliberations of judges will be the intent of Congress when it passed the Affordable Care Act.
Bab noted that the individual mandate was part of Obamacare’s so-called “three-legged stool”.
At the time Congress passed the Affordable Care Act, Democrats argued that the individual mandate was essential for two other aspects of the law to work: The requirement that insurers insure people with pre-existing conditions and subsidies to make insurance affordable.
“How can Congress ever have intended the stool’s two legs to stand without the third leg?” Said Bab.
On the other hand, he explained the decision of Congress in 2017 to lower the individual mandate fine to $ 0 without removing all of the legislative cuts in the other direction.
“Not only did the legislature seem to intend for the law to continue to work, but it has continued to work, and at least we may not have seen the death spiral that led to the mandate,” Bab said.
“These are not easy or sexy questions, and they are not the questions that many scientists would write a long time about,” he added.
Due to Covid-19, the arguments will be held by telephone on Tuesday and broadcast live to the public. They start at 10 a.m.
The case is known as California v. Texas, No. 19-840.