Two Conservative Justices Signal Potential Support For Keeping Obamacare

( Chief Justice John Roberts is at it again.

He, along with conservative Justice Brett Kavanaugh, both signaled during oral arguments on Tuesday that the Supreme Court shouldn’t have a role in invalidating the Affordable Care Act, better known as Obamacare. If those two justices were to ultimately side with the three liberal justices, then Obamacare would remain in effect.

The case in question is being led by Texas and joined by other conservative states and the Trump administration. They are arguing that when Congress eliminated a penalty for people who didn’t carry health insurance, it effectively made the individual mandate of the ACA unconstitutional. As a result, they are arguing that Obamacare in its entirety should be overturned.

On the first day of oral arguments in the case, Roberts said Republicans and President Donald Trump had the opportunity to kill Obamacare on their own, but they have chosen not to do it. Roberts said to an attorney representing Texas:

“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. I think, frankly, that they wanted the court to do that, but that’s not our job.”

Later Roberts added that he didn’t believe the entire law had to be overturned just because Congress did away with the penalty for not carrying health insurance. He said:

“Here, Congress left the rest of the law intact … that seems to be compelling evidence” that Congress didn’t intend to repeal the whole law.

As for Kavanaugh, he at one point told one of the lawyers who is defending the law that he agreed that some provisions of the ACA could be severed if it were necessary. He explained:

“It does seem fairly clear that the proper remedy would be to sever the mandate and leave the rest of the law in place.”

Later on in the hearings, Roberts questioned whether Texas even had a legal standing on which to bring the case. While Texas isn’t forced to pay the individual mandate, it argues that it’s burdened by other parts of Obamacare.

Justice Elena Kagan said the theory that would allow challengers to invalidate an entire law by challenging one or more provisions that don’t harm them could “kind of explode” the approach to standing undertaken by the Supreme Court.

Other conservative justices argued there still could be a burden imposed, even if no penalty was incurred. Justice Clarence Thomas posed:

“What if someone violates that command, let’s say it’s in similar terms to the mandate here but no penalty, would they have standing to challenge the mandate to wear a mask?”

The way justices react during oral arguments aren’t always a good indicator of how they’ll ultimately rule. There have been plenty of surprises in that vein in the past, including in 2012 when Roberts sided with liberals to rule that the individual mandate was valid.

The Supreme Court isn’t expected to ultimately release a ruling in this case until June, near the end of its term.