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One week after an election that was in part about health care, President Donald Trump was at the Supreme Court trying to gut the nation’s health care laws. Ironically, it appears that at least one of the justices Trump himself appointed to the Supreme Court might not let the president get away with it.
If you’re thinking to yourself that we’ve been here before, you’re right, we have. Back in 2012, the Supreme Court ruled that the Affordable Care Act (also colloquially known as Obamacare) was constitutional. At issue in that case was what’s called the “individual mandate.” Under that part of the law, almost everyone in the country was required to have health insurance and, if they didn’t, faced a financial penalty. The challenge to the law said that the individual mandate went beyond Congress’ powers. However, the court, in an opinion written by Chief Justice John Roberts, found that the mandate was a form of a tax (after all, the penalty was paid as part of your annual income tax) and that Congress has wide latitude to influence people’s behavior through the tax code (think of the mortgage or charitable deductions).
Thus, the law was constitutional, and under it, more than 20 million people have gained health insurance. Another part of the law protects an estimated 130 million people who have pre-existing conditions. Before Obamacare, health insurance companies regularly denied coverage to people with pre-existing conditions or, if the companies offered these people policies, charged much higher rates to cover them. Under Obamacare, no one can be denied coverage or charged more because of pre-existing conditions.
But wait, there’s more! Obamacare also requires that preventive health care be covered free of charge, which means people now have access to vaccines, contraception, and screening tests that they never had before. The law also expanded Medicaid so that a larger group of indigent people in this country have access to this government health insurance program.
Obamacare’s massive impact on America’s health care system has been matched from day one by Republican opposition to the program. Obamacare has survived two Supreme Court attacks (a second case in 2015 challenged the system of tax credits under the law) and many repeal attempts when Republicans controlled Congress. Famously, John McCain cast the deciding vote in 2017 that prevented the Republicans’ most promising effort to repeal the law.
Later that year, though, Republicans used the president’s tax-reform bill to gut the individual mandate. As part of that law, Congress erased the penalty for not complying with the individual mandate. The mandate is still in the law, but now if you fail to comply, there is no tax consequence (or any consequence). Every other part of Obamacare remained the same.
Obamacare’s opponents pounced. Now, they said, if there’s no tax consequence for failing to comply, then the law isn’t a tax. And if it’s not a tax, the chief justice’s 2012 opinion said that Congress had no authority to enact the law. Thus, according to these opponents, the individual mandate is now unconstitutional. And if the individual mandate is unconstitutional, then the entire law should be struck down as well because the individual mandate is the piece of the law that makes the entire thing work (because without it, healthy people won’t get health insurance, thus raising the price beyond affordability for everyone else).
Several Republican-controlled states filed suit raising these claims, and the Supreme Court heard arguments in the case earlier today. Three issues are before the court: First, whether the states have been injured in a way that allows them to get into court to make this claim in the first place. Second, whether the zeroed-out individual mandate is constitutional. And third, if the individual mandate is unconstitutional, whether the entire law should be struck down or whether just the individual mandate should be.
Although President Trump and the federal government are not parties in the case, they did file a brief with the court urging it to strike the law down in its entirety. Doing so would get rid of the protections for pre-existing conditions, eliminate Medicaid expansion, and allow health care companies to return to charging for basic preventive care. This would drastically change health care for tens of millions of people, if not more. Trump has repeatedly stated that he wants Obamacare to be struck down and then replace it with his own plan, but no such plan has materialized.
Today at the Supreme Court, all indications are that President Trump and the Republican-controlled states will not get everything they are asking for. Much of the argument was taken up by the discussion over whether the states even have the right to sue. After all, if no one is being charged anything for failing to comply with the individual mandate, no one is injured, and you need an injury to get into court.
However, the blockbuster moment in today’s hearing was when Justice Brett Kavanaugh, one of the three justices appointed by President Trump, all but said that he was not going to agree with the president and strike down the entire law. Kavanaugh said during one of his questions to a lawyer defending the law, “I tend to agree with you this a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.” Plain English interpretation: There’s really no argument to get rid of the entire law just because part of it (the mandate) might be unconstitutional. If you add his vote to the votes of the three liberals and Chief Justice Roberts (who had previously indicated the same thing during oral argument), that’s at least five votes to keep Obamacare’s other provisions.
The usual Supreme Court caveat applies here — oral arguments are never a guarantee of how justices are ultimately going to vote. However, it’s fair to say that after today’s hearing, people who currently benefit from all that Obamacare has to offer can worry a bit less. We most likely won’t know the ultimate outcome until late June, but Obamacare looks like it will once again survive a full-on Republican attack.
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