番茄社区

WASHINGTON -- Following long-awaited oral arguments at the Supreme Court in lawsuits over the constitutionality of one of the Affordable Care Act's major provisions, the landmark healthcare law may have dodged another bullet.

The justices heard two consolidated cases on Tuesday, Texas v. California and California v. Texas, in which the justices were considering whether the ACA can stand without the individual mandate penalty.

"After listening to the justices this morning, I fully expect that they will not wreck Obamacare," said Robert Laszewski, president of Health Policy and Strategy Associates, in Alexandria, Virginia, in an email to 番茄社区.

Tim Jost, JD, emeritus professor of law at the Washington and Lee University School of Law, in Lexington, Virginia, agreed, that there was little reason to believe that justices were "eager to bring down the Affordable Care Act ... Even the most conservative justices were asking some pretty hard questions of the plaintiffs," who are seeking to have the entire ACA declared unconstitutional.

In 2012, Chief Justice John Roberts sided with the then four liberal justices on the court in NFIB v. Sebelius, yielding a 5-4 decision to uphold the constitutionality of the individual mandate -- the provision of the ACA requiring almost every eligible American to have health insurance or pay a penalty -- by deeming the latter a tax.

A group of Republican state attorneys general, governors, and the Department of Justice filed a suit now known as Texas v. California in which they argued that the entire ACA -- even the many provisions unrelated to individual health insurance -- revolves around the penalty. Without it, according to the suit, the law should be declared null and void.

"This case pushes at the line between faithfully following what Congress actually does rather than what it may have intended to do,"said acting Solicitor General Jeffrey Wall, JD, representing the federal government, during the oral arguments Tuesday.

"When Congress eliminated the shared responsibility payment [the individual mandate penalty] it left standing what is now a naked command to obtain insurance and it left standing the finding that that mandate is essential to the operation of other parts of the act. Those choices have legal consequences whether or not the members of Congress who voted for the [Tax Cuts and Jobs Act] foresaw them," he said, referring to the 2017 GOP tax reform bill that eliminated the penalty.

"That's how this court normally approaches interpreting statutes and it's how this court should approach the ACA here," Wall urged. His side has argued that even without the tax, the mandate is coercive.

Lawyers for the "blue state" defendants, including Michael Mongan, JD, California's solicitor general, responded that the mandate as it exists now "still presents a choice either buy insurance or do nothing. That inoperative provision doesn't harm anyone, and it doesn't violate the constitution."

"The consequences of the administration's argument are not academic," said President-elect Joe Biden in a speech on Tuesday afternoon.

"For many Americans, for many, they are a matter of life or death in a literal sense ... It will determine whether 20 million Americans will be ripped away from their healthcare coverage in the middle of the worst pandemic in a century... over 100 million people with preexisting conditions like, asthma, diabetes, cancer, could once again be denied coverage."

Once he is inaugurated, Biden said he and Vice President-elect Kamala Harris will "do everything in our power to ease the burden of healthcare on you and your family ... by building on the ACA with a dramatic expansion of healthcare coverage and bold steps to lower healthcare costs"

"Families are reeling right now," he continued. "They shouldn't have to hold their breath, waiting to see if the Supreme Court is going to wrench away the peace of mind they have come to rely on."

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Jost noted that nearly every question in the first round of oral argument centered around standing -- that is, whether the Republican states are affected by the penalty's removal

"I think [that] strongly suggests that at least some of the justices had some real questions as to whether the plaintiffs had any right to be in court at all."

Miles Zaremski, JD, a healthcare attorney in Chicago and 番茄社区 columnist, said in an email that some of the justices appeared "skeptical" about plaintiffs' claims of injury from the burden of additional paperwork for enrollees, particularly Medicaid enrollees.

Even Justice Clarence Thomas, who rarely speaks during oral arguments, questioned whether the court was "'shadow boxing' in the sense that how can there be a threat to those states if there is no cognizable injury to them," Zaremski said.

If the case were to reach the threshold for standing and the mandate found unconstitutional, both Chief Justice John Roberts and Justice Brett Kavanaugh seemed to signal that "we should presume the statue to be severable," Jost said, rather than overturn the rest of the law. Assuming the three liberal justices agree, that's enough for a majority to save the ACA.

Roberts, who authored the decision on the tax/mandate issue in NFIB v. Sebelius, "was particularly dubious about arguments that the mandate wasn't severable," Laszewski said.

Congress specifically kept the overall law intact when it dropped the penalty for the individual mandate to zero, and Roberts noted that Congress never tried to repeal the full law.

"I think, frankly, that they wanted the court to do that, but that's not our job," the chief justice said.

Kavanaugh also characterized the lawsuit as "a very straightforward case for severability under our precedents," suggesting a tilt toward allowing the ACA to stand.

Finally, the individual mandate has become less important to the ACA since NFIB v. Sebelius came before the court, the defendants and some justices indicated.

While Texas Solicitor General Kyle Hawkins cited the Obama administration reference to the individual mandate as one leg of a "three-legged stool" -- with the other legs being premium subsidies and guaranteed issue (i.e., protection for pre-existing conditions) -- Justice Samuel Alito wasn't buying it.

Alito likened the ACA to a plane in flight: one part has been removed but "the plane has not crashed."

"[T]he ACA will be upheld," predicted Zaremski.

Said Jost, "I think probably the worst case scenario is that [the justices] find standing, hold the statute unconstitutional and strike down a few of the insurance reforms that are directly related to the mandate."

On the other hand, he added, "I would not be surprised if a majority of the court dismisses the case for lack of standing, or finds standing but finds the statute constitutional as is.'

The court's ruling is expected next spring.

Joyce Frieden, 番茄社区's Washington editor, contributed to this article

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