High Court Seems Likely to Leave Health Care Law in Place

[Nomomo]

Wow! Trump is going to lose it and attack the Supreme Court on Twitter big time if he fails in his effort to take away health care from over 12 million Americans.

WASHINGTON (AP) — The Supreme Court seemed likely Tuesday to leave in place the bulk of the Affordable Care Act, including key protections for pre-existing health conditions and subsidized insurance premiums that affect tens of millions of Americans.

November 10, 2020
Chief Justice John Roberts and Justice Brett Kavanaugh, among the conservative justices, appeared in two hours of arguments to be unwilling to strike down the entire law — a long-held Republican goal that has repeatedly failed in Congress and the courts — even if they were to find the law's now-toothless mandate for obtaining health insurance to be unconstitutional.

The court's three liberal justices are almost certain to vote to uphold the law in its entirety and presumably would form a majority by joining a decision that cut away only the mandate, which now has no financial penalty attached to it. Congress zeroed out the penalty in 2017, but left the rest of the law untouched.

“Would Congress want the rest of the law to survive if the unconstitutional provision were severed? Here, Congress left the rest of the law intact,” Roberts said. “That seems to be a compelling answer to the question.”

For his part, Kavanaugh said recent decisions by the court suggest “that the proper remedy would be to sever the mandate and leave the rest of the act in place.” A week after the 2020 election, the justices heard arguments by telephone in the midst of the coronavirus pandemic in the court's third major case over the 10-year-old law, popularly known as “Obamacare.” Republican attorneys general in 18 states and the administration want the whole law to be struck down, which would threaten coverage for more than 23 million people.

California, leading a group of Democratic-controlled states, and the Democratic-controlled U.S. House of Representatives are urging the court to leave the law in place. Kavanaugh is one of three justices appointed by President Donald Trump on a court that is more conservative than the ones that sustained the law in previous challenges in 2012 and 2015. The others are Neil Gorsuch and new Justice Amy Coney Barrett, who joined the court late last month following her hurried nomination and confirmation to replace the late Justice Ruth Bader Ginsburg.

The three Trump appointees have never ruled on the substance of the health care law. Barrett, though, has been critical of the court’s earlier major health care decisions sustaining the law, both written by Roberts.

The Supreme Court could have heard the case before the election, but set arguments for a week after. The timing could add a wrinkle to the case since President-elect Joe Biden strongly supports the health care law.

The case turns on a change made by the Republican-controlled Congress in 2017 that reduced the penalty for not having health insurance to zero. Without the penalty, the law's mandate to have health insurance is unconstitutional, the GOP-led states argue.

If the mandate goes, they say, the rest of the law should go with it because the mandate was central to the law's passage. However, enrollment in the law’s insurance markets has stayed relatively stable at more than 11 million people, even after the effective date of the penalty’s elimination in 2019. According to the nonpartisan Kaiser Family Foundation, enrollment dropped by about 300,000 people from 2018 to 2019. Kaiser estimates 11.4 million people have coverage this year.

An additional 12 million people have coverage through the law's Medicaid expansion. The legal argument could well turn on the legal doctrine of severability, the idea that the court can excise a problematic provision from a law and allow the rest of it to remain in force. The justices have done just that in other rulings in recent years.

But in the first big ACA case in 2012, Justices Samuel Alito and Clarence Thomas voted to strike down the entire law. Roberts and Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor have voted to uphold it.

A limited ruling would have little real-world consequence. The case could also be rendered irrelevant if the new Congress were to restore a modest penalty for not buying health insurance. A decision is expected by late spring.
Source > https://www.mail.com/business/finance/1 ... place.html

[Moksha]

Once the conservative banana peels are set in place, it is hard to keep from falling. Barrett sounds like she will be a scourge to the American people for decades to come

[Gunnar]

My mind still boggles at the absurdity of the current case against ACA. They originally argued that the mandate made it unconstitutional. The court ruled against that argument and upheld the law. That should have ended the issue right there. But then the mandate was dropped, in effect, by reducing the penalty to zero. Immediately they changed their argument that the law was unconstitutional because the mandate, which was their original objection to the ACA, was dropped! What astounding irrationality and unmitigated gall! How much sillier could they get? Why wasn't this new lawsuit immediately laughed out of court?

[Res Ipsa]

My mind still boggles at the absurdity of the current case against ACA. They originally argued that the mandate made it unconstitutional. The court ruled against that argument and upheld the law. That should have ended the issue right there. But then the mandate was dropped, in effect, by reducing the penalty to zero. Immediately they changed their argument that the law was unconstitutional because the mandate, which was their original objection to the ACA, was dropped! What astounding irrationality and unmitigated gall! How much sillier could they get? Why wasn't this new lawsuit immediately laughed out of court?

Because of the ground on which it was originally found constitutional. The government argued that the individual mandate was constitutional under the Commerce Clause and the Necessary and Proper Clause. But the Court upheld the mandate under the Taxation power, holding that the penalty was, in effect, a tax.

The last Congress, under the Senate’s reconciliation rules that require only a majority vote, reduced the penalty to zero as part of the Tax Cut. If the penalty is zero, it’s hard to say that it’s a tax. And if there’s no tax, it’s hard to say the mandate is constitutional under the taxing power.

That’s why there was no laughing out of court. And it’s very unlikely that today’s more conservative Court will rescue the individual mandate by finding a constitutional basis for it.

So, that’s why the the argument today was about severability: should the court hold that the individual mandate be severed from the statute, leaving the other portions of the ACA intact? Or should it hold that the whole statute should be struck down.

in my opinion, these are legitimate issues that are appropriate for the Supreme Court to decide. What makes it unusual is that Congress changed only the individual mandate but did not repeal the rest of the Act. (Thanks John McCain.) Senate rule limit the use of reconciliation, so McCain’s vote plus the Republicans loss of the House prevented a complete repeal.

[Gunnar]

I appreciate your explanation, RI. I have read those arguments on the internet before, but it still seems to me that the current case against ACA is a frivolous grasping at straws and mean spirited. Whether the ACA, or what remains of it, is strictly in accordance with the letter of the constitution as currently worded or not, I don't think that negating it would be in accordance with the spirit of the constitution, considering how many tens of millions people could lose their medical insurance and access to affordable healthcare because of that negation.

I'm not arguing, of course, that the ACA as it currently stands does not need to be fixed or replaced with something better, but simply repealing it without replacing it with something better will do far more harm than good to the poorest and most vulnerable of us.

[Res Ipsa]

I appreciate your explanation, RI. I have read those arguments on the internet before, but it still seems to me that the current case against ACA is a frivolous grasping at straws and mean spirited. Whether the ACA, or what remains of it, is strictly in accordance with the letter of the constitution as currently worded or not, I don't think that negating it would be in accordance with the spirit of the constitution, considering how many tens of millions people could lose their medical insurance and access to affordable healthcare because of that negation.

I'm not arguing, of course, that the ACA as it currently stands does not need to be fixed or replaced with something better, but simply repealing it without replacing it with something better will do far more harm than good to the poorest and most vulnerable of us.

I agree that bringing a lawsuit to take away people's health insurance is mean spirited. But it's not legally frivolous. And I'd have to say that I don't think the spirit of the constitution, whatever that is, is relevant. I am not a strict constructionist. But I do believe that words have meaning and that we should do our best to apply those words, recognizing that the world of 2020 looks nothing like the world of the late 1700s and doing our best to apply those words to todays world. The spirit of the Constitution is government by consent of the people, weak federal government, and deference to state governments. I don't think the spirit of Constitution includes providing everyone with health care. The fact that the framers didn't get right on that after adopting the constitution bears on the sprit. The Constitution requires very little in the way of federal government. Given the concept of limited federal government, the pertinent question is does the Constitution permit the ACA.

I do think we can depart from the strict wording of the constitution, especially when it comes to individual liberty. For example, I agree with the concept that much of the wording of the bill of rights expresses specific examples of a right of privacy -- an individual right to have the government leave the citizens alone in the conduct of their private affairs. But that's construing the constitution in favor of individual rights and against the power of government.

Just my opinion, but framing the lawsuit as "frivolous" simply ignores the discussion that has to happen over the permissible reach of the federal government. Whether one likes it or not, the constitution stands for government requiring consent of the governed, limited federal government, and relatively stronger state government. Medicare appears to be constitutional, so perhaps Medicare for all is a Constitutional means of accomplishing at least a floor of health care. Or maybe it is up to the states to figure this out. For example, a state that provides universal health insurance through taxation may attract businesses that no longer have to pay for worker's premiums. If so, any state that wants to attract businesses is going to have to do something similar. That's the whole notion of states as experimental laboratories. But the one thing we shouldn't do is confuse "morally right" with "constitutionally required" or even "constitutionally permitted." I guess my point is (assuming I actually have one), that dismissing the other side's arguments as "frivolous" is part of the problem we are having in America. We need more engagement and less reflexive dismissal. In my opinion.

I have to admit that it warms my heart to hear our newest conservative Justices stay true to their judicial philosophy as opposed to being result-oriented hacks. Kavanaugh, I think, asked the right question: If Congress chose to repeal only a small piece of the statute, who are we to repeal the rest? Isn't that Congress's job?

[Gunnar]

I do think we can depart from the strict wording of the constitution, especially when it comes to individual liberty. For example, I agree with the concept that much of the wording of the bill of rights expresses specific examples of a right of privacy -- an individual right to have the government leave the citizens alone in the conduct of their private affairs. But that's construing the constitution in favor of individual rights and against the power of government.

Just my opinion, but framing the lawsuit as "frivolous" simply ignores the discussion that has to happen over the permissible reach of the federal government. Whether one likes it or not, the constitution stands for government requiring consent of the governed, limited federal government, and relatively stronger state government. Medicare appears to be constitutional, so perhaps Medicare for all is a Constitutional means of accomplishing at least a floor of health care. Or maybe it is up to the states to figure this out. For example, a state that provides universal health insurance through taxation may attract businesses that no longer have to pay for worker's premiums. If so, any state that wants to attract businesses is going to have to do something similar. That's the whole notion of states as experimental laboratories. But the one thing we shouldn't do is confuse "morally right" with "constitutionally required" or even "constitutionally permitted." I guess my point is (assuming I actually have one), that dismissing the other side's arguments as "frivolous" is part of the problem we are having in America. We need more engagement and less reflexive dismissal. In my opinion.

Thank you again for taking the time to explain things to me. There are few, if any, regulars on this forum whose opinions I respect more than yours. I think I understand better now where you are coming from. I still don't see why any of the wording of the ACA should make it inherently unconstitutional, though. And I still can't shake the feeling that the determination of Trump and his Republican cronies' to repeal the law is not motivated by much more than a mean spirited determination to spite Obama and their Democrat opponents rather than by pure devotion to uphold the Constitution.

I confess, though, that I find it particularly hard to argue with the wisdom of the highlighted part of what you said above. Perhaps, though, it might have been a good idea to have inserted a clause in the Constitution generally requiring the individual states to facilitate covering the health needs of their citizens, but leaving it up to each of them to decide the most equitable and effective legislation to accomplish that.

I have to admit that it warms my heart to hear our newest conservative Justices stay true to their judicial philosophy as opposed to being result-oriented hacks. Kavanaugh, I think, asked the right question: If Congress chose to repeal only a small piece of the statute, who are we to repeal the rest? Isn't that Congress's job?

I certainly agree with that! It is certainly reassuring that even Trump's appointees don't necessarily feel they have to agree with Trump on everything, as I suspected would turn out to be the case. They are, after all, highly educated individuals with minds of their own, and surely better informed about reality, history and how the world works than Trump ever was or ever will be.

[Res Ipsa]

Thanks, Gunnar. I don’t know that I’m right about this stuff. It’s just how I think about it.I find it challenging to reconcile my progressive values with a nearly 250 year blueprint for government.

[Gunnar]

Correction to my last post on this issue:

And I still can't shake the feeling that the determination of Trump and his Republican cronies' to repeal the law is not motivated by much more than a mean spirited determination to spite Obama and their Democrat opponents rather than by pure devotion to uphold the Constitution.

I just wanted to make clear that I inadvertently left out the word "not" in the original post, making it seem to say the opposite of what I intended to say. I have corrected the original post.