Conservative justices help save ObamaCare — for now

The Supreme Court heard oral argument in California v. Texas on Tuesday, the cliffhanger legal challenge to the Affordable Care Act (ACA), otherwise known as ObamaCare, that is the second of its kind to reach the high court. The event was hardly what many feared it would be, because Chief Justice John Roberts and Justice Brett Kavanaugh uncharacteristically showed their hands, virtually assuring that the statute won’t be struck down as unconstitutional. Whew.

Recall that this case was a centerpiece of the political outrage around Justice Amy Coney Barrett’s fire-drill appointment to the Supreme Court to fill late-Justice Ruth Bader Ginsburg’s seat just days before voting closed in President Trump’s reelection bid. The concern that Trump chose Barrett out of self-interest was confirmed recently when a member of the California Republican National Committee said in an interview that she hoped Barrett “will come through” for her benefactor in the event an election dispute reaches the Supreme Court and potentially decides the election. (A Supreme Court resolution of the election is virtually impossible at this juncture, given the weakness of the myriad lawsuits filed by the Trump campaign and the significant vote margins in President-elect Joe Biden’s favor.) 

Barrett’s obvious conflict of interest only exacerbated the damage Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Committee Chair Lindsey Graham (R-S.C.) already inflicted on the court’s legitimacy when they rushed Barrett through, despite having snubbed President Obama’s Supreme Court pick, Judge Merrick Garland, eight months before the 2016 election.

Despite the uneventfulness of the oral argument, the decision in California v. Texas could serve as a harbinger of what to expect from Barrett, who adamantly refused to answer basic questions at her confirmation hearing around whether the Constitution contemplates a peaceful transfer of presidential power (it does) and whether voter intimidation is legal (it’s not). What she did provide was a tired refrain outlining her judicial philosophy — that she is an “originalist” and “textualist” who purportedly applies the plain language of a text and, barring that, looks to the “public meaning” of language — whatever that means — at the time a statute or provision of the Constitution was drafted. 

Enter the latest round of ACA litigation. Recall that in 2012, the Supreme Court rebuffed a challenge to the constitutionality of the statute’s so-called individual mandate — a penalty Congress included for people who refused to purchase health insurance, which was designed to ensure that the insurance industry could afford the extra load of subscribers. In an opinion authored by Roberts, the court held in NFIB v. Sebelius that the penalty was constitutional because it amounted to a tax. In 2017, Congress lowered the penalty to zero dollars, prompting the plaintiffs in the current lawsuit to argue that the mandate is no longer a tax — and thus no longer constitutional — because it raises zero revenue for the U.S. government. Somewhat infamously, Barrett criticized Roberts’ reasoning in a 2017 law review article, raising the specter that she’d vote to seal the ACA’s death warrant this time around.

The new panel of justices focused primarily on two issues during oral argument: whether the plaintiffs were even injured by the individual mandate given that it was basically gutted in 2017, and whether — if it is no longer constitutional — the entire statute should be tossed out along with it. The second issue is the most interesting, as both Kavanaugh and Roberts — conservatives with similar judicial philosophies as that which Barrett espouses — didn’t think this was a hard case. Roberts quipped that if Congress wanted to kill the 900-page statute, it would have done so when it effectively killed the individual mandate in 2017. “I think it’s hard for you to argue that Congress intended the entire act 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,” he told the lawyer for the State of Texas, who urged invalidation of the entire law along with 17 other states. “I think, frankly, that they wanted the court to do that, but that’s not our job.” 

Kavanaugh, too, offered to the opposing counsel that “I tend to agree with you on this very straightforward case for severability.” In other words, it’s clear to Kavanaugh that the court should not throw the baby out with the bath water, despite political pressure from the right to do so. As Roberts wrote in another case, the general rule is that an “unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.” Given that Congress didn’t toss out the ACA when it revised the individual mandate in 2017, there’s no reason not to keep the balance of the act if the mandate is excised from it now.

To be sure, Barrett threw Senate Democrats a bone during her confirmation hearings when she indicated, in response to queries about the ObamaCare case, that “the presumption is always in favor of severability.” Her questions during oral argument on Tuesday were unilluminating, if not obtuse. What matters is whether she votes with the chief justice — despite her critique of his opinion in Sebelius — who is expected to give a nod to the statute and the health care it triggered for approximately 20 million Americans. 

Perhaps more significantly, such a vote would support Barrett’s own legitimacy as a neutral arbiter of the facts and the law, and not a pawn of the president, who is currently throwing the country into more chaos in the midst of a growing pandemic by refusing to acknowledge his loss to Biden. Perhaps most importantly, as a conservative jurist, a vote by Barrett to save the ACA would signal respect for Congress as the body that makes laws. Let’s hope the court bears this bedrock principle in mind if progressive legislation were to reach the justices under a Biden administration.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter @kimwehle.