Conservative judges John Roberts and Brett Kavanaugh signaled on Tuesday that they are not prepared to completely eliminate the Affordable Care Act.
The law-also known as Obamacare-was retried in the Supreme Court on November 10, when the judges heard oral arguments questioning the constitutionality of the law. The suit was organized by Republican attorneys general in Texas and other states.
At the heart of the case is a 2017 Congressional decision that essentially abolished the individual mandate by reducing the tax penalty to zero for those who did not take out insurance, as required by law.
The coalition of the red states argues that the abolition of the penalty made the entire law unconstitutional. So far, two lower courts have sided with Texas by calling the individual mandate unconstitutional.
A group of liberal states, led by California and supported by the House of Representatives, is defending Obamacare. They argue that the tax penalty is still a tax, even if the price is zero. They also argue that even if the court were to remove the individual mandate and penalty, the rest of the health care bill could be “separated” from it.
Chief Justice Roberts and Judge Kavanaugh expressed their support for the severability argument during Tuesday’s hearing.
While questioning the Texas Attorney General, Roberts said, “It is hard for you to argue that Congress intended to overthrow the entire bill if the mandate were abolished.
Kavanaugh agreed with this and stated that it seemed “quite clear that the appropriate remedy would be to abolish the mandate provision and leave the rest of the law in place.
Roberts also noted that some Republican legislators may have wanted the Supreme Court to repeal the law, “but that is not our job.
A decision in this case, entitled California v. Texas, is not expected before 2021.
This is now the third time that Obamacare has been brought before the Supreme Court. But it will be the first time that Judge Amy Coney Barrett, the youngest person appointed by President Donald Trump, will rule on a case involving the Health Care Act. With Barrett on the bench, the Republicans have a 6-3 majority.
The case came before the High Court just one week after the election between Trump and President-elect Joe Biden. Trump has said he will only appoint anti-Obamacare judges, while Biden has pledged to build on the health care bill during his own term.
Last month Trump told CBS News that he wanted the Supreme Court to declare the 2010 health care bill completely invalid.
“I hope they end it,” the president said, adding that “it would be so good if they ended it.