Two U.S. Supreme Court justices on the conservative wing expressed skepticism toward arguments that the Affordable Care Act (ACA) popularly known as Obamacare should be dumped in its entirety.
During oral arguments on Tuesday, Chief Justice John Roberts and Associate Justice Brett Kavanaugh both suggested that they won’t vote to reject the entire law even if the court invalidates a provision that requires people to acquire insurance.
“I tend to agree with you that it’s 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,” Kavanaugh told a lawyer defending the law that provides health insurance to 20 million people.
Congress had the upper hand to repeal the measure when it took action on the monetary penalty, according to Roberts.
A number of Republican-headed states argued that Congress’ elimination of the penalty for not having health insurance means the entire law is unconstitutional.
“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,” Roberts told the attorney representing Texas.
Roberts said he believes Congress wanted the Supreme Court to strike down the entire Obamacare but claimed, “that’s not our job.”
“Under the severability question, we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed,” Roberts said. “And here Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question.”
U.S. Vice-President-elect Kamala Harris said if the Affordable Care Act is struck down, “communities of color would be hit particularly hard. We are at a greater risk of preexisting conditions, and three times more likely to contract COVID-19.”