Chief Justice John Roberts and Trump appointee Justice Brett Kavanaugh strongly questioned whether the elimination of the mandate penalty made the rest of the law problematic. Kavanaugh appeared to favor leaving the rest of the law intact if the mandate is struck.
“I tend to agree with you that it is a very straightforward case under our precedents, meaning that we would excise the mandate and leave the rest in place,” Kavanaugh said.
Roberts, who authored two previous opinions upholding Obamacare, said the court should consider whether Congress in 2017 intended for the rest of the law to survive if the mandate was found unconstitutional.
“Here Congress left the law intact when it lowered the penalties to zero,” Robert said. “That seems to be compelling evidence on the question.”
Oral arguments are not a perfect indicator of how the justices may eventually rule, but the remote session, conducted by telephone due to the pandemic, may provide some reassurance to people depending on Obamacare, a $3.6 trillion health care industry that’s been remade by it, and policymakers across Washington.
A ruling against the law, officially known as the Affordable Care Act, could derail President-elect Joe Biden’s plans to build on its coverage and overwhelm Congress. Democratic lawmakers as well as many of their Republican colleagues have been dreading a scenario in which a Supreme Court decision forces them to make a quick legislative fix, given the persisting bitter partisanship over the law.
Many legal observers believed this case, California v. Texas, to be the weakest of the Supreme Court challenges to Obamacare so far. But the law appeared to be in greater danger after Trump’s newest appointee, Justice Amy Coney Barrett, was quickly installed following the September death of Justice Ruth Bader Ginsburg, who almost certainly would have been a reliable vote for Obamacare.
For Obamacare to survive unscathed, at least two Republican appointees will need to join the court’s three liberal justices.
Oral arguments in the case are still continuing.