At arguments, justices suspicious of GOP challenge to ObamaCare after Dems warned Barrett could overturn law

https://www.foxnews.com/politics/supreme-court-obamacare-affordable-care-
act-aca-barrett-oral-arguments

Several Supreme Court justices, including conservative Trump appointees, 
appeared suspicious Tuesday of arguments by the Trump administration and 
red states that the Affordable Care Act (ACA) should be overturned after 
Congress in 2017 removed the financial penalty associated with the 
individual mandate to purchase health insurance. 

During oral arguments on California v. Texas, the much-hyped case in which 
a group of states led by Texas is trying to overturn the law, also known 
as ObamaCare, Justices Brett Kavanaugh, John Roberts and even Samuel Alito 
assailed the Trump administration and red state lawyers on their arguments 
that the individual mandate cannot be excised from the rest of the law 
under the "severability" doctrine.

Meanwhile, Justices Clarence Thomas and Amy Coney Barrett seemed 
suspicious that the red states, whose lawsuit led to the politically 
charged hearing on Tuesday, even had the standing to bring their suit in 
the first place. 

DEMS WARN BARRETT CONFIRMATION MEANS DOOM FOR OBAMACARE, BUT 
'SEVERABILITY' DOCTRINE MIGHT SAVE IT

Justices' comments during oral arguments do not necessarily reveal how 
they will vote when the court eventually issues its rulings. Alito, for 
example, is generally expected vote to overturn the law despite his tough 
questioning of the Trump administration's lawyer. 

But Democrats' predictions of doom for the ACA if Barrett were confirmed 
to the Supreme Court appeared to have been misplaced after the oral 
arguments in which conservative justices put the screws to the lawyers 
challenging the constitutionality of the act. 

"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 in place, Kavanaugh said. "Don't you think in 2017, do you read 
Congress as having wanted to preserve protection for coverage for people 
with preexisting conditions, because it sure seems that way from the 
record and the text?"

BARRETT IN SPOTLIGHT AS SUPREME COURT TAKES ON OBAMACARE CHALLENGE

"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," 
Roberts said. "I think, frankly, that they wanted this court to do that, 
but that's not our job."

"The feature of this case that has a strange aspect is the sea change 
that's occurred in the understanding of the role of the individual 
mandate," Alito said while questioning Acting U.S. Solicitor General 
Jeffrey Wall. "At the time of the first case, there was strong reason to 
believe that the individual mandate was a part in an airplane that was 
essential to keep the plane flying... The part has taken out and the plane 
has not crashed... If we were to decide the case the way you advocate, how 
would we explain why the individual mandate in its current form is 
essential to the operation of the act? "

Outside of the question of severability, which was widely expected to take 
center stage in this case and was a significant part of Barrett's 
confirmation hearings, the court spent much of its Tuesday arguments 
addressing whether there was standing for the lawsuit in the first place. 

"The individual mandate now has no enforcement mechanism so it's really 
hard to determine what the threat of an action is against you," Thomas 
said to Texas Solicitor General Kyle Hawkins, who was representing the red 
states. 

Said Barrett: "Let's say we agree with you that the mandate, by making 
them feel legal compulsion to purchase insurance, has caused them 
pocketbook injury. Why is that traceable to the defendants that the 
individuals have actually sued here?"

No matter where Barrett and Thomas end up falling on the standing issue, 
or if Alito surprises and votes that the individual mandate is severable 
from the rest of the ACA, there appear to be at least enough votes with 
Roberts and Kavanaugh siding with the court's liberals on severability to 
preserve the ACA. 

Over the summer Kavanaugh wrote an opinion on robocall restrictions – 
which was joined by Alito – that said the Supreme Court “presumes that an 
unconstitutional provision in a law is severable from the remainder of the 
law or statute.”

SEN. JOE MANCHIN: IF DEMOCRATS WIN SENATE, I WON'T SUPPORT 'CRAZY STUFF' 
LIKE COURT PACKING

Barrett herself in her confirmation hearings said of severability: "So if 
you picture severability being like a Jenga game, it's kind of if you pull 
one out ... will it all stand or if you pull two out will it still 
stand?... Severability strives to look at a statute as a whole and say, 
'Would Congress have considered this provision so vital that kind of in 
the Jenga game, pulling it out, Congress wouldn't want the statute 
anymore?'"

The arguments Thursday follow Barrett's tough confirmation fight, which 
ended a mere two weeks ago, as Republicans aimed to seat the justice 
before the presidential election and Democrats warned she could cause the 
ACA's death knell. 

"A vote by any senator for Judge Barrett is a vote to rip away health care 
from millions of Americans," Senate Minority Leader Chuck Schumer, D-N.Y., 
said repeatedly through Barrett's confirmation process. 

But Republicans touted Barrett's commitment to "faithfully apply the law 
to the facts without personal agenda," in the words of Senate Judiciary 
Committee Chairman Lindsey Graham, R-S.C., and her "well qualified" rating 
from the American Bar Association. 

A ruling in the case is expected by summer 2021, the end of the Supreme 
Court's current term, but could come sooner as the case is being argued 
early in the term, which only started last month. It could also be short-
circuited by legislative action potentially amending the ACA under 
President-elect Biden's administration. 

The Tuesday arguments also featured some technical difficulties, in which 
Justice Stephen Breyer, who telegraphed clearly he will likely rule in 
favor of the ACA, was skipped at one point due to his phone apparently not 
working, and Roberts moved on to Alito. Breyer's phone was fixed shortly 
thereafter, but he declined to ask further questions and blamed his 
"machine" for not working. 

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There were also a handful of colorful hypotheticals. Roberts compared the 
ACA's individual mandate to a theoretical law requiring that Americans mow 
their grass but does have an enforcement mechanism, signaling that on the 
merits of the case he might think the individual mandate to be 
unconstitutional, even if it is severable from the rest of the law. 

Thomas compared the mandate to mask mandates during the pandemic. And 
Kavanaugh asked about whether people would be able to sue if Congress 
passed a law requiring them to fly flags on their houses, but did not 
impose a penalty on those who failed to do so.

"It's a forced acquisition of an unwanted good or service. Why isn't that 
enough to give you standing, knowing that some people are going to do that 
– buy the flags and fly them – simply because Congress requires that?" 
Kavanaugh said while questioning California Solicitor General Michael 
Mongan. 

Fox News' Megan Henney contributed to this report.


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