Chances are the Affordable Care Act (ACA) survives its latest challenge in the US Supreme Court. At least that’s how it looks now.
After several hours of arguments via conference call on Tuesday, the ACA appears to have the support of two conservative judges from the court.
According to the Washington Post, Chief Justice John Roberts and Justice Brett M. Kavanaugh appeared to have campaigned for compliance with the law. Their position appears to be that while Congress eliminated the ACA’s individual mandate penalty in 2017, it did not indicate that it intended to repeal the entire law.
“I think you have a hard time arguing that Congress intended to overturn the entire law … when the same Congress that cut the penalty to zero did not even try to overturn the rest of the law,” the Chief Justice said to lawyer Kyle D. Hawkins of the bank. Mr. Hawkins, the Texas attorney general, is the attorney representing 18 Republican-led states in the case against the ACA, the Post reported.
“I honestly think they wanted the court to do that. But that’s not our job, ”said the Chief Justice.
The law’s attorneys could not escape Chief Justice Roberts’ skepticism. Referring to 2012 – when he cast the key vote that upheld the ACA during its first judicial challenge – the Chief Justice said that the law’s attorneys at the time argued that the mandate [which required citizens to have insurance or pay a penalty] was the key to the whole act.
“It was all about getting money from people who were forced to take out insurance to cover all other deficits in the expansion of the health care system,” the chief judge told attorney Donald Verrilli, who, according to Politico, represents states that do Advocate ACA.
“But now the representation is that everything is fine without it. Why the bait and the switch? “he asked.
For his part, Judge Kavanaugh said court precedents create a strong presumption that a law should be saved if its constitutional weakness can be easily addressed, the Post reported.
“It seems pretty clear that the right remedy is to remove the mandate provision and leave the rest of the law in place,” Justice Kavanaugh told Mr. Hawkins.
According to the Post, there are three questions for the court to rule on: Do the challengers have legal powers to hear the case? Have changes made by Congress in 2017 made the ACA’s obligation to take out insurance for individuals unconstitutional? If so, can the rest of the law be separated out, or must it fall in its entirety?
How these questions are answered will determine the fate of the law. Justices Neil Gorsuch and Amy Coney Barrett – two of the people appointed by President Donald Trump and Mr. Kavanaugh – did not provide any insight into their position. Justice Barrett, persistently questioned but unsuccessfully, by Democratic senators during their recent confirmation session of her position in the ACA, was also difficult to read, the Post reported.
During her law school and before going to the bank, she had criticized the two previous court decisions in support of the ACA. In a law review article, she said Chief Justice Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the law.”
If Chief Justice Roberts and Justice Kavanaugh join the court’s three liberals – Judges Elena Kagan, Stephen G. Breyer and Sonia Sotomayor – the law would stand up to the latest challenge.
The ACA, the health bill signed by President Barack Obama, has helped 22 million Americans get insurance. A new study published in the
Applied Economic Perspectives and Policy magazine noted that since Medicaid was expanded by a provision by the ACA 10 years ago, the number of low-income, uninsured rural residents who generally support President Trump has declined more than their urban counterparts.
The Trump administration, which joined the current lawsuit, took office under the slogan of repealing and replacing the ACA. In the early hours of August 27, 2018, the Republican Senate’s attempt to repeal the bill fell by one vote when the late Senator John McCain (R-Ariz) made a dramatic thumb-down against the repeal was true. The government has since promised to announce a new health bill, but has yet to propose one more.
Meanwhile, President-elect Joe Biden pledged this week to work with Congress to “dramatically increase” Americans’ health protection, according to Politico.
Mr. Biden plans to build on the ACA and create a public insurance option to compete with private insurance. His plan would also increase subsidies for medium-sized consumers.
“I promise you that starting January 20, Vice President-elect (Kamala) Harris and I, we will do everything in our power to relieve you and your family of health care,” he said.
But how much a President Biden can do in healthcare may depend on the outcome of the Georgia Senate races and who gets control of the Senate.