CHARLESTON, W.Va. — The U.S. Supreme Court on Tuesday heard arguments regarding former President Barack Obama’s health care law, in which justices signaled support for maintaining a majority of the statute.
Eighteen Republican-led states — including West Virginia — have been fighting for more than two years that the health care law is unconstitutional in light of Congress reducing the individual mandate. The Department of Justice is supporting the GOP coalition, while 21 Democratic attorneys general and the House of Representatives contend the health care law should stay.
“That inoperative provision doesn’t harm anyone, and it doesn’t violate the Constitution,” California Solicitor General Michael Mongan said.
When Republicans controlled both congressional chambers, the legislative body failed to repeal “Obamacare,” but reduced the penalty for not purchasing health insurance in the 2017 tax law. Texas and 19 other states launched the legal challenge in February 2018, arguing the reduction gave the rest of the law little remaining legal standing. Wisconsin and Maine withdrew from the effort following the 2018 elections.
The Supreme Court held up the health care law in 2012 and 2015; Chief Justice John Roberts wrote in NFIB v. Sebelius the individual mandate is constitutional as a tax.
Mongan said if Congress wanted to end “Obamacare,” legislators would have successfully repealed the entire law rather than the individual mandate, also known as Section 5000A.
“After a year of debate about the future of the ACA, Congress made a single surgical change: It made 5000A unenforceable by eliminating the only legal consequence for not buying insurance and it kept every other provision in place,” he argued. “We know the rest of the act should remain in effect if 5000A is held to be unenforceable because that’s the very framework Congress itself has already created.”
A federal judge in Texas struck down “Obamacare” in December 2018. The 5th U.S. Circuit Court of Appeals in New Orleans the following December ruled the individual mandate is unconstitutional but left the issue of severability to the lower federal court.
Roberts on Tuesday noted the challenge of arguing Congress intended to end the law through the reduction.
“I think, frankly, that they wanted the court to do that, but that’s not our job,” he told Texas Solicitor General Kyle Hawkins.
Donald Verrilli, representing the House of Representatives, said there is not sufficient evidence that lawmakers favored ending the health care law by reducing the individual mandate.
“Respondents’ arguments take constitutional adjudication as a game of gotcha to a whole new level, but this is not a game,” he added. “This court’s precedents require respect for the constitutional role of Congress, and those precedents emphatically foreclose the outcome that respondents seek.”
Verrilli served as the U.S. solicitor general from June 2011 to June 2016 and argued in NFIB v. Sebelius that “Obamacare” is constitutional.
Justice Brett Kavanaugh addressed severing the provision from the rest of the health care law.
“I tend to agree with you on that this is 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,” the associate justice said.
Hawkins described the individual mandate as “a naked command to purchase health insurance” that falls outside of Congress’ powers.
“The legislative findings declaring the mandate essential require this court to conclude — as did the district court below and the joint dissent in NFIB — that the mandate is inseverable from the remainder of the law,” he said. “In asking the court to hold otherwise, petitioners are really asking this court to ignore statutory provisions in U.S. code.”
Justice Stephen Breyer questioned Hawkins about if a requirement without a penalty is unconstitutional, noting legislation commemorating events and encouraging actions like buying war bonds.
“Are all those statutes suddenly open to challenge? Are none of them? If so, you lose,” Breyer said. “If it’s in between, which ones are and which ones aren’t?”
The case is one of the first for Justice Amy Coney Barrett; the Senate confirmed her nomination last month amid concerns about her positions on “Obamacare,” in which she said Roberts’ 2012 opinion “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Barrett asked Mongan if the difference between reducing the individual mandate and repealing matters.
“I think Congress understood how this court had construed 5000A as a choice, and it understood that it would make the provision effectively inoperative to zero out the tax,” he responded.
The health care law’s other provisions include a prohibition on denying insurance coverage because of preexisting conditions, allowing states to expand Medicaid, and forbidding discrimination against customers because of race, gender identity and age.
According to the Kaiser Family Foundation, around 382,000 West Virginians with a preexisting condition have health insurance because of “Obamacare.” The state Department of Health and Human Resources told MetroNews around 184,000 people have insurance coverage through Medicaid expansion, and the federal government covers 90% of West Virginia’s Medicaid expenses.
Sen. Joe Manchin, D-W.Va., like his Democratic colleagues, issued a statement supporting the health care law.
“While the ACA is not perfect, we simply can’t throw the baby out with the bathwater. I firmly believe Congress can work in a bipartisan way to improve the affordability and flexibility of health insurance,” he said.
One possible improvement that Manchin noted is a bill he introduced with Maine Republican Susan Collins; the two cosponsored a measure supporting states for providing affordable health insurance options and market programs.
“Every West Virginian and American deserves access to quality, affordable health insurance, and I will continue fighting in the Senate to protect that access,” he added.