During the presidential campaign, Trump repeatedly said he would come up with an alternative but never issued any substantive details. His three Supreme Court appointees — Justices Neil Gorsuch, Kavanaugh and Amy Coney Barrett —
will play a key role in deciding the future of the law.
Barrett, before taking the bench, expressed criticism concerning Roberts’ original reasoning to uphold the law. But during her confirmation hearings last month she declined to tip her hand as to how she might rule on the dispute.
In court Barrett too, zeroed in on the intent of Congress in 2017.
“So what should we make of the fact that Congress didn’t repeal the provision?” she asked.
At another point she noted that Congress was “free” to come back in and better explain what it meant to do.
Supporters of the Affordable Care Act think the court should uphold the entire law. But in case it does strike down the mandate, they stress that Congress never meant to bring down the entire law when it made changes in 2017.
“Congress made a single surgical change,” California Solicitor General Michael Mongan told the justices. He stressed that the rest of the law should remain in effect if the mandate is struck “because that’s the very framework Congress itself already created.”
Former US Solicitor General Donald Verrilli, arguing on behalf of the House of Representatives, argued that the two individuals and Republican-led states do not have the legal injury necessary to bring the challenge. He said that now that Congress has brought the penalty down to zero, those who refuse to buy health insurance are no longer faced with a tax for failing to do so.
“There is just no way that Congress would have preferred an outcome that throws 23 million people off their insurance, ends protections for people with preexisting conditions and creates chaos in the health care sector,” he said.
Justice Elena Kagan seemed to agree. “A lot of legislation now is in these huge packages,” she said, “and it would seem a big deal to say that if you can point to injury with respect to one provision and you can concoct some kind of inseverability argument, that it allows you to challenge anything else in the statute.”
Justice Samuel Alito suggested at one point that the law had been functioning since the mandate had been brought to zero. Referencing an airplane, he said, “the plane has not crashed” without the individual mandate.
Roberts pressed Verrilli, who had argued in favor of the law when he served as solicitor general for the Obama administration, on the fact that back then the government had repeatedly stressed how important the individual mandate was to the entire law. On Tuesday Verrilli argued the opposite. “Why the bait and switch?” Roberts asked.
Twice in the previous court term, the justices relied on severability doctrine to save laws after finding individual provisions unconstitutional. In one case Roberts wrote, “We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer.”
In another case, Kavanaugh pressed his belief that the court in the case at hand should work to “salvage rather than destroy” a law with an unconstitutional provision.
Some legal experts doubt that the justices would strike the down the whole law.
Notre Dame Law professor Richard Garnett, who is close with Barrett, said in a statement that he doubted the court would invalidate the entire law. “Although in 2017 Congress lowered to zero the penalty for failing to comply with the so-called ‘individual mandate,’ there is very little chance that a majority of the justices will conclude that this move renders the entire ACA — including portions dealing with coverage for pre-existing conditions — unconstitutional,” he said.
And although Biden was vice president when the law passed, experts say the fact that the Senate may remain majority Republican will complicate his efforts to save the law.
“Biden would need to pass a law to kick the case to the curb,” said Nicholas Bagley, professor of law at the University of Michigan Law School.
Bagley said such a law would be “simple” to draft. “Congress could increase the tax penalty to a nominal amount (say, $1); it could eliminate the language telling people to buy insurance; or it could add a severability clause. Any one of those laws would kill the case,” he said.
“If Republicans still control the Senate after this election, they’re unlikely to play ball. Whatever the Supreme Court says is likely to stick.”
Near the end of the arguments, Wall, perhaps making the Trump administration’s last significant argument before the Supreme Court in a blockbuster case, said that the individual mandate “exceeds Congress’ enumerated powers” and that the court should leave it up to the “political branches to decide how to proceed.”