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As Educators Await, Arguments Suggest High Court Unlikely to Strike Down ACA

By Mark Walsh — November 10, 2020 5 min read

The U.S. Supreme Court on Tuesday appeared unlikely to strike down the Affordable Care Act in its entirety in a high-stakes case that has implications for some school employees as well as for young people on their parents’ insurance plans.

“We ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed,” Chief Justice John G. Roberts Jr. said during the arguments in California v. Texas (Case No. 19-840) in reference to a 2017 action by lawmakers to eliminate the penalty for not complying with the individual mandate of the 2010 ACA.

“Here, Congress left the rest of the law intact when it lowered the tax to zero,” Roberts added. “That seems to be compelling evidence on the question.”

Looking at the court’s precedents regarding “severability,” Justice Brett M. Kavanaugh said, “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 regarding preexisting conditions and the rest.”

Roberts was the author of the court’s 5-4 decision in 2012 in National Federation of Independent Business v. Sebelius, which upheld the ACA based on Congress’s taxing authority. The chief justice joined with the court’s liberal bloc in upholding the law in that decision and in one later case that fundamentally attacked the law.

But the addition of three new members to the court in recent years with less of a track record on the ACA has prompted fears among the law’s supporters, especially with the death in September of Justice Ruth Bader Ginsburg, who had voted to uphold the law, and her replacement by Justice Amy Coney Barrett, who had questioned the 2012 decision in her writings as a law professor.

The court is considering a lawsuit brought by Texas and 17 other mostly Republican-led states challenging the constitutionality of the ACA after Congress in 2017 eliminated the penalty for not complying with the law’s individual mandate. A federal district court held that the entire law was unconstitutional because the individual mandate was no longer sustainable under the tax-power theory that the Supreme Court had relied on in Sebelius.

While an appeal was pending in the U.S. Court of Appeals for the 5th Circuit, in New Orleans, President Donald Trump’s administration announced that it would no longer defend the law. California and 19 other states plus the District of Columbia stepped in to defend the law’s constitutionality.

The 5th Circuit court last year struck down the individual mandate, but said the trial court should re-examine whether the rest of the ACA could be severed from the mandate and saved.

Both the American Federation of Teachers and the National Education Association joined a friend-of-the-court brief in support of California.

“Safeguarding the health and safety of students, families and our communities is a national priority, and any attempt to dismantle the health care, on which more than 20 million Americans depend, should be soundly rejected,” NEA President Becky Pringle said in a statement Tuesday.

‘A Naked Command’

Kyle D. Hawkins, the solicitor general of Texas, told the justices Tuesday that even with the elimination of the tax penalty, the ACA’s mandate for most Americans to buy health policies was “a naked command to purchase health insurance, and, as such, it falls outside Congress’s enumerated powers.”

“The mandate is inseverable from the three-legged stool” that the court referred to in Sebelius to describe the ACA’s critically interacting provisions, he said.

Acting U.S. Solicitor General Jeffrey B. Wall, representing the Trump administration in support of Texas and the other challengers, said, “Congress did a very targeted thing in 2017. It said we don’t want people to have to make this payment anymore if they don’t want to get insurance. ... But they didn’t amend or alter the text of the act.”

Michael J. Mongan, the solicitor general of California, said that the challengers’ view that the mandate is unconstitutional and thus the entire law must fall “would cause enormous regulatory disruption, upend the markets, cast 20 million Americans off health insurance during a pandemic, and cost the states tens of billions of dollars during a fiscal crisis.”

Mongan was joined by Donald B. Verrilli Jr., who was representing the U.S. House of Representatives in support of the law.

“The Affordable Care Act has been the law of the land for 10 years,” said Verrilli, who was the U.S. solcitor general under President Barack Obama and successfully argued the Sebelius case.

“The health-care sector has reshaped itself in reliance on the law,” Verrilli said. “Tens of millions of Americans rely on it for health insurance that they previously couldn’t afford. Millions more rely on the act’s other protections and benefits. 
In view of all that has transpired in the past decade, the litigation before this court, the battles in Congress, the profound changes in our healthcare system, only an extraordinarily compelling reason could justify judicial invalidation of this law at this late date.” 


The nearly two-hour argument included complicated discussions of legal standing and hypothethicals about a federal command to fly a U.S. flag, plant trees, or wear a mask to fight COVID-19.

The court’s three more-liberal justices—Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan—said little to suggest they would strike down the entire law.

“The 2017 Congress has already told us that it doesn’t want the rest of the act to fall, correct?” Sotomayor said to Verrilli, who quickly agreed.

Barrett, closing out her second week of arguments, asked tough, sometimes technical, questions of both sides, and did not clearly reveal her hand, though she may have leaned toward some of the challenger’s arguments.

“What should we make of the fact that Congress didn’t repeal the provision?” she asked Mongan. “You’re asking us to treat it as if it functionally has been repealed, but that’s not what Congress did.”

Justice Samuel A. Alito Jr., who has consistently voted against upholding the ACA, said there was a “strange aspect” to the case, a “sea change that’s occurred in the understanding of the role of the individual mandate between our first Affordable Care Act case and today.”

He referred to the fact that the removal of a penalty for Americans who do not obtain insurance has not seemed to imperil the overall operation of the law, as Congress feared when it enacted the measure.

“At the time of the first case, there was strong reason to believe that the individual mandate was like a part in an airplane that was essential to keep the plane flying so that if that part was taken out, the plane would crash,” Alito added. “But now the part has been taken out and the plane has not crashed.”

A decision in the case is expected by next June.

A version of this news article first appeared in The School Law Blog.

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