With the fate of health insurance for more than 20 million Americans at stake, two justices — Chief Justice John Roberts Jr. and Justice Brett Kavanaugh — seemed inclined Tuesday to form a majority to preserve the Affordable Care Act in nearly its entirety.
The two justices, along with their three liberal colleagues, indicated that if the health care law’s individual mandate to purchase health insurance was no longer constitutional following Congress’ action in 2017, a doctrine known as severability would allow the court to excise the mandate but keep the rest of the law in place.
- A copy of the Texas v. California oral arguments transcript is available here.
- An article about how the Supreme Court justices talked about severability in another recent ruling is available here.
The ACA individual mandate provision requires some people to have what the government classifies as a minimum level of health coverage or else pay a penalty.
In 2017, Congress eliminated the tax penalty for failure to have health insurance. A coalition of 18 Republican state attorneys general, led by Texas, and two individuals brought a legal challenge claiming that eliminating the tax penalty undermined the Supreme Court’s 2012 decision upholding the mandate’s constitutionality under Congress’ taxing power. A federal district court in Texas and the 5th U.S. Circuit Court of Appeals agreed.
“It’s hard for you to argue that Congress intended the entire act to fall when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Texas Solicitor General Kyle Hawkins. “I think they wanted the court to do that, but it’s not our job.”
Under the severability question, Roberts added, “We ask whether Congress would want the rest of the law to survive. Here Congress left the rest of the law intact. That seems to be compelling evidence.”
Kavanaugh said that, if the individual mandate can’t be justified, “It does seem fairly clear the proper remedy would be to sever it. Inseverability clauses usually are very clear. Congress knows how to write them and that is the not the language they chose here [in the act].”
The issue of severability was seen by many court scholars and others as the “ball game” in the case. But two other issues also consumed the more than two hours of arguments: whether the Republican states and individuals had standing to challenge the health act, and whether the mandate without the tax penalty was constitutional.
The justices appeared closely divided on whether the challengers had offered sufficient evidence that, for standing purposes, they had suffered a concrete injury from Congress’ 2017 action.