Obamacare faces one other Supreme Court docket check on Tuesday, this time with a Conservative majority of 6-Three

A protester holds a sign in support of Obamacare outside the Washington Supreme Court.

Andrew Harrer | Bloomberg | Getty Images

The landmark health legislation known as Obamacare is being tested for the third time this week in front of the most conservative judicial panel to sit on the bench in decades before the Supreme Court.

The Supreme Court will hear arguments on Tuesday contesting the constitutionality of President Barack Obama's 2010 Affordable Care Bill.

The case was the focus of Democrats during Justice Amy Coney Barrett's confirmation hearings last month. Democrats warned that endorsing Barrett by providing a 6-3 majority of Republican-appointed judges would effectively doom the law to failure.

If the court breaks the law, more than 20 million Americans could lose the health insurance they received under its rules. The health insurance industry, which has been revolving around the law for 10 years, could be turned on its head.

The spreading coronavirus pandemic, which has killed more than 230,000 people in the US since it emerged late last year and sparked a recession that has thrown millions of people out of their health insurance, has stepped up the use of the fight.

A decision is expected by the end of June.

Obamacare's story in court

The case was filed by a Texas-led Red States consortium and is supported by the Justice Department headed by President Donald Trump. California and other blue states defend the law.

The dispute is discussed just a week after the presidential election between Trump and President-elect Joe Biden. It shows the huge political differences proposed by the two men.

While Trump has gone to court to abolish the bill, Biden, who played a role in its passage, focused his health care policy on maintaining and empowering Obamacare. If the court knocks it down, Biden will likely have few options to revive a new version of it and little time.

The Democrats are expected to retain control of the House of Representatives, but their path to a Senate majority is narrow, and control of the upper body of Congress is likely to come from two special elections in Georgia due to take place in January.

The Supreme Court reviewed the Affordable Care Act twice in 2012 and 2015 and found it lawful both times. The impending case raises a new question about the constitutionality of the law's individual mandate provision that requires most Americans to purchase health insurance or pay a fine.

The Supreme Court upheld the individual mandate in the 2012 National Federation of Independent Business v. Sebelius case. In this case, Chief Justice John Roberts disagreed with the Obama administration, which argued that the mandate was a punishment – but Roberts affirmed that the provision was effective is a tax.

In 2017, Republicans in Congress, anxious to eliminate Obamacare since signing, set the individual mandate penalty to $ 0.

Since the penalty is $ 0, Texas and the other red states have argued that it is no longer legal as a tax. Since the individual mandate is now unconstitutional, the entire law must be removed.

A federal district court in Texas and the 5th US appeals court sided with the red states, saying the single mandate was unconstitutional. The district court stated that as a result, the entire law must fall, while the appeals court did not finally address the latter point.

"The individual mandate is unconstitutional because it can no longer be understood as a tax, and there is no other constitutional provision that justifies this exercise of congressional power," said the appeals court.

The question of separability

The panel added that it was an open question whether the mandate was "severable" or could be separated from the rest of the law.

"It may still be that none of the ACA can be separated from the individual mandate even after this investigation is completed," the majority said. "It may be that the entire ACA is separable from the individual mandate. It can also be that part of the ACA is separable from the individual mandate and others are not."

Health care activists fear that the court will finally override the law by a majority of 6 to 3.

"I'm really nervous," said Wendell Potter, a former executive at Cigna who has been advocating liberal health reform for a decade.

"There has been so much close conversation, certainly when John McCain saved the day a few years ago," said Potter, referring to the late GOP Senator's 2017 vote on the waiver of the individual mandate and other provisions of the law. "This threat is really worrying given the change in the composition of the court."

Barrett, an academic for most of her career, criticized the Supreme Court's reasoning for upholding Obamacare in previous cases despite not addressing the legal issue in the present case. She said during her hearings that she would be open about the case.

In contrast to the questions raised in the earlier cases, the views on separability are clearly not partial. Last term, in a unrelated Obamacare case, three Court Conservatives suggested that their views on separability might be beneficial to health Democrats.

Judges Brett Kavanaugh, in a statement by Roberts and Judge Samuel Alito, wrote that courts should generally separate an infringing provision from a broader law when the rest of the law can function independently. Kavanaugh wrote that it was "quite unusual for the rest of a law" not to be able to do so.

"Constitutional disputes are not a gotcha game against Congress, where litigants can commit a discreet constitutional error in a law in order to get rid of all otherwise constitutional law," wrote Kavanaugh.

Andrew Bab, partner at law firm Debevoise & Plimpton and co-head of the health and life sciences group, said another key factor for the judges will be the intent of Congress in passing the Affordable Care Act.

Bab noted that the individual mandate was part of Obamacare's so-called "tripod stool".

At the time Congress passed the Affordable Care Bill, Democrats argued that the individual mandate was essential for two more aspects of the bill to work: The requirement that insurers cover those with pre-existing conditions and subsidies to make insurance affordable close.

"How can Congress ever have intended the two legs of the stool to stand without the third leg?" Said Bab.

On the flip side, he explained the decision of Congress in 2017 to lower the individual mandate fine to $ 0 without removing all of the law cuts in the other direction.

"Not only did the legislature seem to intend for the law to continue to work, but it has continued to work, and at least we may not have seen the death spiral that led to the mandate," Bab said.

"These are not easy or sexy questions, and they are not the questions that many scientists would write a long time about," he added.

Due to Covid-19, the arguments will be held by telephone on Tuesday and broadcast live to the public. They start at 10 a.m.

The case is known as California v. Texas, No. 19-840.

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