Two justices appointed by Republican Presidents indicated on Tuesday that they were unlikely to move to strike down the entire Obama health law, as the U.S. Supreme Court wrestled with the latest GOP attempt to bring down the Obamacare system.
“This does seem like deja vu all over again,” said Justice Samuel Alito at one point, as almost two dozen states led by Texas argued the entire health law should come down because the individual mandate is unconstitutional.
But both Chief Justice John Roberts and Justice Brett Kavanaugh threw cold water on that legal game plan.
“Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision, and leave the rest of the act in place, the provisions dealing with pre-existing conditions and the rest,” Kavanaugh said during arguments.
At issue in arguments was the requirement for people to buy health insurance - the individual mandate - as the GOP Congress under President Trump approved a plan to zero out the tax penalty for not getting insurance, but never passed a law to repeal the Obama health law.
“When the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act - I think that they frankly wanted the Court to do that, but that’s not our job,” Chief Justice Roberts bluntly observed.
Combining the votes of the Chief Justice and Justice Kavanaugh with the three more liberal members of the Court - Breyer, Sotomayor, and Kagan - would seem to give a majority in favor of leaving the Obamacare system in place.
Democrats had opposed the elevation of Justice Amy Coney Barrett to the Court by charging she would be a fifth vote to overturn the Affordable Care Act.
“Kavanaugh said that this is a very straightforward case in favor of severability,” said legal expert Jonathan Turley of George Washington University.
“That is consistent with what many of us said in noting that Kavanaugh and probably Roberts were already likely to vote against striking down the entire act,” Turley noted during the arguments.