“A challenge to the Affordable Care Act got a relatively hostile reaction at a virtual Supreme Court hearing on Tuesday, offering hope for the millions of people who depend upon the law for their health care. In oral arguments, both Chief Justice John Roberts and Associate Justice Brett Kavanaugh expressed skepticism about a key argument in the lawsuit ― specifically, that if one part of the Obamacare law is unconstitutional, then the entire law has to come off the books. In this case, the plaintiffs contend that when Congress in 2017 eliminated the fines associated with the ACA’s “individual mandate” that most U.S. residents obtain health coverage, the mandate itself became unconstitutionality coercive, requiring invalidation of the entire statute. Republican attorneys general representing 18 states who brought the lawsuit think the whole program has to go. So does the Trump administration, which is backing the lawsuit. Democratic officials representing 20 states and the District of Columbia, along with the U.S. House, are defending the law. They say the rest of the Affordable Care Act can stay even if the justices think there’s one constitutionally invalid provision. The legal concept here is called “severability.” Roberts and Kavanaugh hinted they have the same view of how it applies in this case as the Democrats do. “Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate and leave the rest of the law in place,” Kavanaugh said to Kyle Hawkins, the Texas solicitor general arguing to strike the law down. Questions from the justices don’t always indicate how they will later vote, in part because justices sometimes change their minds. But if Roberts, who voted to uphold the Affordable Care Act in two previous challenges, and Kavanaugh vote to let the Affordable Care Act stand this time with or without the individual mandate, that will almost surely mean the rest of the law will at least survive because the three Democratic-appointed justices will likely vote the same way. “While it isn’t clear where they stand on the constitutionality of the mandate, based on their questions today ― which of course cannot predict anything with certainty ― it seems likely they would vote to uphold the rest of the ACA even if the mandate is struck down,” Abbe Gluck, a Yale University law professor, told HuffPost. “The Chief and Justice Kavanaugh are both expressing strong skepticism of the red states’ position on severability,” Joseph Palmore, a former assistant to the U.S. solicitor general who is now an appellate attorney at Morrison & Foerster, wrote on Twitter. “If they stick with that position, the #ACA will survive.” This is a developing story. Please check back for updates.
