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Supreme Court Justices Hint That Obamacare Repeal Is Highly Unlikely

At issue is whether the individual mandate, which the GOP zeroed-out in 2017, is severable from the rest of the law.

Supreme Court Associate Justice Brett Kavanaugh and Chief Justice John Roberts arrive to hear President Donald Trump deliver the State of the Union address in the House chamber on February 4, 2020, in Washington, D.C.

Supreme Court justices listening to oral arguments on Tuesday regarding the legality of the Affordable Care Act (ACA), sometimes referred to as Obamacare, signaled reluctance toward finding the law unconstitutional.

At issue is whether a portion of the law called the individual mandate is severable or not — a legal term that questions whether the law can exist or not without a specific provision being enforced. A complete striking down of the law, if it’s found not to be severable from the mandate, would mean those who receive subsidies to buy insurance, utilize federal and state-created health exchanges, or even benefit from the law’s provision on protecting those with preexisting health conditions, could be negatively affected.

In 2012, the Supreme Court had ruled that the mandate, which required Americans to purchase health insurance if they were financially able to do so, was constitutional. Those who did not purchase insurance, either through their employer or through a health insurance exchange, would be assessed a tax by the federal government.

In 2017, however, Congress, then controlled by Republicans, passed the Trump administration tax cuts. In the bill that was later signed into law by President Donald Trump, there was a provision that zeroed-out the individual mandate, effectively creating no penalty for not having purchased insurance if one could otherwise afford to do so.

Afterwards, several states across the country filed lawsuits alleging that, without the mandate, the law was inoperable and unconstitutional.

The three liberal justices on the Supreme Court, not surprisingly, signaled on Tuesday that they weren’t buying into that line of argument. But two conservative bloc justices, Chief Justice John Roberts and Justice Brett Kavanaugh, also made comments that implied they weren’t inclined to accept the arguments to strike the law down.

Kavanaugh, in discussions with a lawyer defending the law, said he agreed that “this a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”

“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the law in place,” Kavanaugh also said.

Roberts appeared to agree. In discussing how Congress went about changing the law, he noted that Republicans had not ended it completely in the Trump tax bill.

“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were 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.

Although Republicans have made many attempts to end the law in other ways (more than 70 times from the time it was enacted in 2010 through 2017), Roberts conceded that Congress might have wanted the courts to do so after having failed to repeal it themselves. “But that’s not our job,” he added in his comments.

If Roberts and Kavanaugh do indeed decide against finding the ACA unconstitutional, they, along with liberal bloc Justices Steven Breyer, Sonia Sotomayor and Elena Kagan, would form a majority on the Court preventing the law from being struck down. It’s possible that other conservative bloc justices on the court, too, could join in upholding the law, as the remaining four justices didn’t appear to indicate one way or the other where they stood on the issue.

It is still possible, though unlikely given their comments on Tuesday, that Roberts or Kavanaugh could change their views.

The ruling on the case, California v. Texas, is set to be made sometime next year, in the spring at the earliest.

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