Chief Justice John Roberts and Justice Brett Kavanaugh suggested Tuesday that it wasn’t the Supreme Court’s role to invalidate the entire sprawling, 900-page Affordable Care Act, even if one or more provisions are deemed unconstitutional, signaling the key parts of Obamacare will survive the latest court challenge.
As the pandemic rages, President Donald Trump lashes out at election returns and President-elect Joe Biden prepares for a new administration, the Supreme Court heard oral arguments to discuss whether to invalidate the linchpin of the nation’s health care system.
The Trump administration and several Republican-led states are asking the court to strike down the law, 10 years after it was passed, potentially impacting millions of Americans. Should Roberts and Kavanaugh, at the very least, side with the court’s three liberals, the law would remain intact.
Roberts said simply that if Trump and Republicans wanted to kill the law, they could have done it.
“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told the attorney representing Texas, one of the states fighting the law.
“I think, frankly, that they wanted the court to do that, but that’s not our job,” Roberts added.
At another point Kavanaugh told a lawyer supporting the law that he tended to agree with his position that some provisions could be severed if necessary.
Roberts and other justices began their questions asking whether the individual plaintiffs and Republican-led states can show that they have the legal injury necessary to allow them to bring the challenge to the law. This discussion on standing is a dry legal concept but it could be critical.
Supporters of the law say the challengers have no legal injury because after Congress amended the law in 2017 there is no longer a penalty for failing to buy health insurance. Lawyers for the Democratic-led states and the House of Representatives say the court should therefore dismiss the challenges.
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