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Supreme Court Hears Case Threatening Obamacare, But It's Unlikely the Justices Will Kill It

11-10-2020
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Tuesday the U.S. Supreme Court heard what is expected to be one of the biggest cases of this term. That's because it's all about the Affordable Care Act, which could well be on the line. Though, from statements made at the hearing, it appears the justices are looking for a way not to eliminate Obamacare and start over.

California v. Texas is the case that got all the attention at Amy Coney Barrett's hearings as Democrat senators put up big posters of all sorts of sick people they say will lose their healthcare if Obamacare's wiped out through this case. Now they'll soon see if all that fear was justified.
 
Opponents Advocate Wiping Out the Individual Mandate…Then More

It's true that the Trump administration and a number of red states asked the Court to use this case to kill the entire Affordable Care Act.
 
They said the Court should first get rid of the individual mandate that commands people to buy health insurance. And then go even further.

Texas Solicitor General Kyle Hawkins argued, "The (individual) mandate is best read as a command to purchase health insurance and that is unconstitutional. And the text of the law says that the remainder of the ACA cannot work without that individual mandate." 
 
He said of the ACA law as drawn up originally, "This is Congress saying over and over again that the mandate is essential to the operation of the law.  And I don't believe there's any serious argument that Congress would have enacted the ACA in 2010 but for the individual mandate or without the individual mandate." 
 
Who Needs a Stick When the Carrots are Working?

But the other side - consisting of blue states and congressional supporters of the ACA - argued at first Congress thought Obamacare's individual mandate, or "stick" would be essential because the "carrots" offered wouldn't be enough to get people to buy health insurance. Lawmakers, however, have found the mandate isn't needed.
 
"I don't think there's any doubt the 2010 Congress thought that stick was important, but it's turned out the carrots work without the stick," said former Obama administration Solicitor General Donald Verrilli, arguing for congressional supporters of the ACA.
 
Mandate Not Needed Because the ACA Plane Hasn't Crashed

Justice Samuel Alito made the same point for ACA backers, saying, "The individual mandate was like a part in an airplane that was essential to keep the plane flying. So if that part was taken out the plane would crash. But now, the part has been taken out and the plane has not crashed."  

ACA supporters say wiping the whole Act out would be disastrous.
 
California Solicitor General Michael Mongan told the justices, "It would cause enormous regulatory disruption, upend the markets, cast 20 million Americans off health insurance during a pandemic, and cost the states tens of billions of dollars during a fiscal crisis." 

Verrilli added, "There's just no way Congress would have preferred an outcome that throws 23 million people off their insurance, ends protections for people with preexisting conditions, and creates chaos in the health care sector."
 
Justices Most Likely to Practice Severability

What's most likely to happen is the justices will do what they often have before: practice severability. That is: sever what needs to go and let the rest of the Affordable Care Act survive.
 
As Justice Brett Kavanaugh said today, "This is a very straightforward case for severability under our precedents, meaning we'd excise the mandate and leave the rest of the Act in place." 
 
Most Americans had healthcare plans before the Affordable Care Act and still will even if the Act goes down. But for the rest, it would behoove Congress and the White House to get an alternative ready just in case the Court rules several months from now all of the ACA is unconstitutional.

Hack the Mandate, Leave the Rest

But it sounded like the justices were looking for a way to hack away what needs to go and leave the rest of Obamacare intact.

That's what Prof. Josh Blackman at the South Texas College of Law heard. He stated, "The Court did not express even the slightest interest in setting aside the entire Affordable Care Act. I still think a majority of the Court may find that the mandate remains an unconstitutional requirement to buy insurance. But the Court will likely stop there."

And Erin Hawley, a senior legal fellow at the Independent Women's Law Center, opined, "The oral argument today in California v. Texas highlighted that a solid majority of the Supreme Court believes in the Founders' vision of a limited federal government.  The government may not force individuals to buy a product like health insurance under the Commerce Clause and Congress cannot zero out a tax and still claim to be operating under the taxing power. This means that the individual mandate is unconstitutional."

But Alfredo Ortiz, president of the conservative-leaning Job Creators Network, is hoping the justices will kick the entire ACA to the curb.

He stated, "Since Obamacare was signed into law, more than 30 percent of small business owners have dropped insurance coverage for employees due to rising premiums. Since 2013, premiums for the average individual plan have increased by 123 percent, while premiums for family plans have risen by 174 percent. Half of Americans now have access to two or fewer healthcare plans on Obamacare exchanges; nearly one in five have access to one.  

Ortiz continued, "If the Supreme Court overturns Obamacare, Joe Biden and the Democrats insist that those with preexisting conditions would no longer have access to healthcare. Nothing could be further from the truth. There is a consensus in both parties that we need to protect those with preexisting conditions.  We don't need Obamacare to achieve that worthy goal."

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