The Supreme Court heard oral arguments Tuesday in the long-awaited case in which a number of Republican states are trying to have the Affordable Care Act declared unconstitutional in its entirety. The arguments gave cause for optimism.
The legal argument Republicans make in this case, which is supported by the Trump administration, is widely considered a joke, even by many conservative experts. Yet the forward momentum of the case never waned, which is why it remains such a profound threat to Americans’ health care.
But during the hearing, Chief Justice John Roberts and Justice Brett Kavanaugh offered hints that they found the Republicans’ arguments unpersuasive.
This is not all that surprising. Roberts and Kavanaugh are smart enough to know how dangerous this lawsuit is to their party. As the conservative justices with the best political radar, they were the ones most likely to step in to save the GOP from itself by tossing away this suit.
To summarize, the Republican argument in this case begins with the 2017 tax cut, which included a provision lowering the ACA’s penalty for not carrying health insurance (the individual mandate) to $0. Because of that, they claim, the mandate can no longer be considered a “tax.”
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The Supreme Court previously turned away part of a challenge to the ACA by saying the mandate was within Congress’s taxing power. But now the mandate no longer exists in any real way. Because of that, the argument runs, the entire ACA — the exchanges, the expansion of Medicaid, the protections for people with preexisting conditions, the subsidies for people to afford private coverage, all of it — must be struck down.
Even though many conservatives find this lawsuit ludicrous, almost the entire Republican Party has signed on to it.
Tuesday’s oral arguments included a long discussion of “standing,” whether the plaintiffs have suffered some kind of injury that allows them to bring suit. Roberts is something of a stickler for standing, and it could be a way for the justices to turn the suit away without getting into its substance.
But the real meat concerned “severability,” the question of whether if one provision of a law is found unconstitutional, the entire law has to be struck down. That’s the theory the Republican case rests on. And Roberts and Kavanaugh both seemed unfriendly to it.
“It’s hard for you to argue that Congress intended the entire law 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 Texas solicitor general.
When Kavanaugh was questioning one of the Democratic lawyers defending the ACA, he said, “I agree with you that this is a straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”
So it looks like there’s a strong possibility — though there are no guarantees — that Roberts and Kavanaugh will join the court’s three liberals and uphold the law.
In the coming days, conservatives will take Roberts and Kavanaugh’s skepticism as proof that when Democrats spent so much time using this case to warn about the damage the new conservative supermajority on the court could do, they were being hyperbolic, even dishonest.
But that’s utterly bogus. It was absolutely right and proper for Democrats to focus on this case during Amy Coney Barrett’s confirmation (and before, and after), even if they do prevail. That’s because it shows just how determined the GOP is to use its control of the court to achieve what it can’t through ordinary politics. Even if the court might not give Republicans their way this time, there’s always a next time.
What’s more, all the controversy around the ACA may have helped convince Roberts and Kavanaugh to do what they look poised to do.
Recall what we witnessed during the Barrett hearings. Democrats talked over and over about the horrors that would ensue if the ACA were struck down. Something like 23 million people losing their health coverage. Protections for preexisting conditions wiped away. The health care system plunged into chaos.
They brought poster-size pictures of their constituents who would suffer into the hearings and told their stories. And in response, Republicans pretended to be insulted at the very thought that Barrett and the other conservatives would do what their party is asking of them.
If the politics weren’t clear before the hearings, they certainly were after: If the GOP gets the decision it has asked for, it would be a political cataclysm for them. But the fact that Roberts and Kavanaugh understood this political reality doesn’t mean Democrats’ warnings about this case were overblown.
Think about it this way. If I set up a poorly assembled cannon aimed at your house, and when I lit the fuse it failed to go off, you wouldn’t say, “Hey, no problem, buddy, I knew you weren’t really serious about that.” You’d say, “What the hell are you doing trying to fire a cannon at my house?!”
That’s what Republicans did, and that’s what they should be held accountable for.
Waldman writes for The Washington Post.