When Senate Republicans rammed Amy Coney Barrett’s nomination through, one of their main goals was to have her on the Supreme Court in time to hear oral arguments in the case challenging the Affordable Care Act, California v. Texas. The American people saw this, and that is one reason that a majority of voters who considered the Supreme Court an important factor in their vote chose Joe Biden over Donald Trump, a change from previous elections when conservative and Republican voters cared more about the Court.
As discussed in PFAW’s preview to the current Supreme Court term, this challenge to the ACA has been widely recognized as without legal merit. It was ginned up by more than two dozen Republican state attorneys general after Congress in 2017 reduced the ACA’s tax penalty for not having health insurance to zero but left the rest of the ACA unchanged. The mandate that Republicans claimed for years made the law unconstitutional came to an end. But now Republicans are claiming that the absence of an enforceable requirement to buy health insurance makes the ACA unconstitutional.
Their position is that the requirement to have health insurance is no longer a tax, and since that was the only basis the Court had for upholding it as constitutional in 2012’s NFIB v. Sebelius case, the now-unenforced mandate is now unconstitutional. Even more bizarrely, they urge the Court to strike down the entire ACA: Since the mandate was originally considered essential to the rest of the law when Congress passed it in 2010, it must still be considered inseverable to the rest of the law now, despite Congress showing exactly the opposite.
Last December, a Trump judge on the Fifth Circuit Court of Appeals cast the deciding vote to accept that argument. Two months ago, many Americans were unaware that their health care was once again at risk before the Supreme Court. But the GOP’s single-minded determination to install Barrett on the Court in time to hear oral arguments made the case—and the entire Republican scheme—front page news. Now the eyes of the country are on the justices more than they would have been otherwise.
As they questioned the lawyers representing the ACA’s opponents, even Chief Justice John Roberts and Justice Brett Kavanaugh voiced skepticism of their argument, although Roberts characterized the evolution in Congress’s thinking as a “bait and switch.” Barrett gave fewer clues to her thinking. But in an exchange with the attorney representing the House of Representatives who was defending the law, she raised the possibility that Congress in 2017 actually intended to transform the insurance requirement from a tax into a mandate, which would be unconstitutional under the Interstate Commerce Clause. Both advocates for the law and other justices were dubious of an interpretation of the statute that started from the premise that Congress intended to do something it knew was unconstitutional.
Justices Sonia Sotomayor and Elena Kagan asked pointed questions revealing the illogic of the ACA’s opponents’ case. In 2012, the Supreme Court held that the requirement to have health insurance is not a coercive mandate but a choice between paying a tax or buying insurance. But now that the tax has been reduced to zero, the law’s opponents are arguing that it has become a coercive mandate simply by being on the books. Sotomayor and Kagan challenged that position, asking how reducing the tax penalty to zero can possibly be regarded as making the law more coercive.
Ultimately, it is often hard to predict how the justices will rule based on the questions they ask in oral arguments. We may not know until June whether the Republican scheme to get Barrett on the Court before Trump could be voted out of office will have the impact they are hoping for: the elimination of the Affordable Care Act and all of the vital health care protections it provides.