At stake as the justices decide the fate of the Affordable Care Act is health care coverage for more than 20 million Americans and a signature policy of former President Barack Obama.
But this third challenge has become even more politically soaked than the 2012 and 2015 attempts because of President Donald Trump’s opposition, and the high court’s integrity is again on the line.
And just as Trump has suggested his appointees would back him in any litigation related to the November 3 election, he has often signaled he expects his appointees to side with him on administration initiatives such as ending Obamacare.
The Barrett appointment also has moved the court beyond a 5-4 divide to a new 6-3 conservative-liberal dominance. Roberts, who had been at the ideological center and regularly controlled cases with his fifth vote and regard for institutional interests, is likely to find it harder to steer a steady course.
But his role as chief justice still gives him a commanding presence and, as demonstrated in his questions to lawyers during the two-hour teleconference hearing, he continues to seek ways to minimize differences and — for now at least — avoid blockbuster rulings.
The cautious, strategic Roberts does not want the court to drive someone else’s policy agenda, for example, by killing Obamacare when Trump and congressional Republicans failed. Referring to members of Congress, Roberts said at one point on Tuesday: “I think, frankly, that they wanted the court to do that, but that’s not our job.”
In the weeks ahead, the Roberts Court will face other social policy dilemmas and disputes between the executive branch and Congress. Roberts is apt to stick to his low-profile strategy, especially with the presidential election still dominating the news and Trump, voted out of office, exacerbating tensions.
Roberts’ compromise in 2012 helped trigger the current dispute. The 2005 appointee of Republican President George W. Bush crafted a compromise with the court’s four liberals to uphold the ACA by construing its individual insurance mandate as part of Congress’ taxing power. Roberts separately agreed with the challengers at the time that the mandate violated Congress’ power to regulate commerce.
His tactics to preserve the law drew anger from conservatives who had fought Obamacare from its inception, but the moves went a long way toward shaping public perceptions of the chief justice as a moderate jurist. (His record on multiple other issues, regarding race and religion, for example, is solidly with the right-wing.)
The taxing-authority rationale was thrown in doubt when Congress in 2017 zeroed out the penalty for people who failed to obtain insurance. Texas and other Republican-led states sued the federal government, contending the individual insurance mandate could no longer be sustained as part of Congress’ taxing power.
Those longstanding ACA opponents, backed by the Trump administration, further contended the 2017 changed doomed the entire, multifaceted law, including its expansion of Medicaid for low-income people and its protections for people with preexisting conditions such as epilepsy, diabetes and cancer who might otherwise be denied insurance coverage.
When Congress enacted the so-called individual mandate, lawmakers deemed that requirement “essential” to overall insurance reform. The theory was that requiring younger, healthier people to buy insurance would to help spread the costs throughout the system.
Lawyers for California and other Democratic-led states, along with the Democratic-led US House of Representatives, defended the law’s constitutionality and argued that even if the zeroed-out insurance requirement has become invalid, the rest of the law should survive.
Roberts and old scores
Roberts spurned arguments that would derail the entire law. He noted that the justices typically asked whether Congress would want the rest of a law to stand if a portion if found invalid.
“And here, Congress left the rest of the law intact when it lowered the penalty to zero,” he said. “That seems to be compelling evidence on the question.”
Roberts likely has a majority for that conclusion. The three other justices who had upheld the law in the past (Stephen Breyer, Sonia Sotomayor and Elena Kagan), suggested by their questions that they would do so again. And Justice Brett Kavanaugh (a 2018 Trump appointee) said he found “a very straightforward case” for excising the mandate and leaving the rest of the ACA in place.
Yet Roberts in his colloquies with lawyers, returned to old battles.
He reminded lawyer Donald Verrilli, who on Tuesday was representing the US House and supporting the ACT, where Verrilli had been in 2012 when he insisted the law’s provisions were intertwined.
Verrilli, now in private practice, was the US solicitor general defending the law.
“Mr. Verrilli, eight years ago those defending the mandate emphasized that it was the key to the whole act,” Roberts said. “Everything turned on getting money from people forced to buy insurance to cover all the other shortfalls in the expansion of health care. … But now the representation is no, no everything is fine without it. Why the bait and switch? Was Congress wrong when it said the mandate was the key to the whole thing? That we spent all that time talking about broccoli for nothing?”
A cliched argument from early ACA debate held that if government could force Americans to buy health insurance, it could require the consumption of healthy foods like broccoli.
When Verrilli responded to Roberts on Tuesday, he invoked a carrot-and-stick analysis.
“So, Mr. Chief Justice, in 2010 I don’t think there’s any doubt that Congress made a predictive judgment about what would be needed to create an effective market and they adopted a carrot and stick approach,” Verrilli said. “There were a lot of carrots, you know the policies were attractive … there were generous subsidies to draw people into the market … But there was also a stick, the tax payment if you didn’t enroll, and I don’t think there’s any doubt that the 2010 Congress thought that stick was important.
“But it’s turned out that the carrots work out without the stick. That’s the judgment that the Congress made in 2017,” Verrilli said, explaining that budget experts showed that Congress could end the tax penalty, essentially repeal the mandate, and the insurance market would remain stable.
Roberts voiced a separate grievance to Texas Solicitor General Kyle Hawkins, arising from the fact that ACA opponents have turned to the judiciary for something that could not be achieved legislatively.
“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 the court to do that, but that’s not our job.”
In a later exchange between Hawkins and Kagan, the Texas solicitor general tried to minimize Roberts’ crucial 2012 opinion that that invoked taxing power and declared individuals had a choice between buying insurance and paying the penalty.
Hawkins described Roberts’ opinion as “an alternative reading of the (ACA) statute, a savings construction.”
Kagan swiftly broke in: “If I might interrupt, general, I think you have to accept the holding because that holding is what allowed the ACA to remain in existence all this time.”
Kagan acknowledged that the decision was “four plus one” — but the “one” made it the majority view.
That “one” — Roberts — is likely to again forge a majority to guarantee that Obamacare lives another decade.