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Supreme Court appears favorable to keeping Affordable Care Act

Congress has already decided it doesn't want the entire law to fall, says Justice Sonia Sotomayor.

Susan Morse, Managing Editor

C-SPAN broadcast oral arguments in the ACA case before the Supreme Court on Tuesday.

Supreme Court Justices on Tuesday morning grilled the Texas and other Republican plaintiffs in the Affordable Care Act case on why the defunct mandate to buy health insurance or face a tax penalty makes the entire 2010 law invalid.

The case hinges on the issue of whether the law is severable from the mandate to buy health insurance or face a tax penalty. Congress got rid of the individual mandate in 2017.

What Congress thought in 2017 was that, given a choice between invalidating the entire ACA and zeroing-out tax, Congress's choice was just zero-out the tax, said Justice Sonia Sotomayor. 

"Congress has already told us they don't want the rest of the act to fall," she said.

Chief Justice John Roberts agreed that, "Here Congress left the rest of the law intact."

Justice Neil Gorush said, "Let's focus on the merits. The mandate was a permissible exercise of taxing authority because it produced revenue. That seems to have withered away."

While the majority of 6-3 conservative majority of the court is seen as a favorable factor to invalidating the ACA, Justice Brett Kavanaugh, who was appointed by President Trump, especially appeared to side with California and Democratic defendants on the issue of severability.

There is a "strong background presumption of severability," Kavanaugh said.

America's Health Insurance Plans, which supports the ACA, said after the two-hour hearing that it was encouraged by the questions and confident the Supreme Court would return the "right decision."

A decision will be handed up by the end of the term in July 2021.


Plaintiffs Texas and other Republican states and the Trump Administration claim the individual mandate is not severable from the rest of the ACA, making the entire law moot.

Questions arose as to whether the mandate to get health insurance still stands under the law, even if the tax penalty for enforcement does not.

The Justices often asked the attorneys how they would view other mandates that don't have an enforcement aspect. For instance, a mandate to mow the lawn, fly the flag or wear a mask.

Chief Justice Roberts asked, if a person without health insurance goes on a job interview and is asked if he or she ever violated the law, how does the person respond? Roberts indicated the answer would have to be that the person violated the law.

Justice Stephen Breyer said the United States promoting Americans to buy War Bonds or plant a tree are statements that have no penalty.

"Do you say unconstitutional for any reason?" Breyer asked the plaintiffs. "If so, there's an awful lot of language subject to court challenge."

Acting U.S. Solicitor General Wall wrapped up his argument by telling the court it should strike down the ACA and "allow the political branches to decide how to proceed, given the peculiar circumstances of this moment."

California Solicitor General Michael Mongan said 20 million Americans would be impacted by a ruling against the ACA.


Much of the debate centered on whether Texas and other plaintiffs had standing in the case, that they were harmed by the ACA.

Texas offered evidence that the ACA increased costs to the state by increasing Medicaid enrollment by 100,000 persons. 


In 2012, the Supreme Court voted 5-4 to uphold the ACA because of the tax mandate. Congress had the authority to tax, the Justices said at the time, but not the authority to mandate consumers buy health insurance.

Chief Justice John Roberts wrote the majority opinion and was joined by Justices Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan. All, except for Roberts, were nominated by a Democratic president.

Those in the dissent included Justices Anthony Kennedy, Samuel Alito, Antonin Scalia and Clarence Thomas, who were all appointed by Republican presidents.

Kennedy is retired; Scalia died in 2016; and Ginsburg died in September.

Current Justices appointed by a Republican president are Roberts, Thomas, Alito, Gorsuch, Kavanaugh and Amy Coney Barrett.

Current Justices appointed by a Democratic president are Breyer, Sotomayor and Kagan.


America's Health Insurance Plans said, "While the Supreme Court heard oral arguments today, the protections in the ACA were hard at work. Today, young adults can remain on their parents' plan through age 26.  Today, ACA premium subsidies and expanded funding for Medicaid programs in 36 states and the District of Columbia helps millions of Americans – including so many who lost their jobs due to COVID-19 – get the coverage they need.  And today, millions of seniors and disabled Americans can afford needed medications because the ACA eliminated the prescription drug 'donut hole.'"
Twitter: @SusanJMorse
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