Supreme Court seems likely to keep Obamacare intact in blow for Trump

Justices appear unconvinced that landmark healthcare law could be struck down in its entirety

The Affordable Care Act appears likely to survive a challenge at the US Supreme Court, where Donald Trump and Republican allies have bet on dismantling the landmark healthcare legislation that has insured millions of Americans following its passage under his predecessor Barack Obama.

Several justices on the nation’s high court, including members of its now-conservative majority, signalled that they would not support a constitutional challenge to the law over its individual mandate, after Congress agreed to remove a tax penalty for Americans who do not obtain insurance in 2017.

“It does seem fairly clear that the proper remedy would be to sever the mandate and leave the rest of the act in place," conservative Justice Brett Kavanaugh, a Trump appointee, told plaintiffs. "The question to you obviously is, how do you get around those precedents on severability, which seem on point here?”

Texas Solicitor General Kyle Hawkins, the attorney representing the Republican states seeking to overturn the law, argued that that the ACA was a command from Congress, even if a tax penalty had been removed.

Acting solicitor general Jeffrey Wall, on behalf of the Trump administration, argued that congress had “left standing the naked command to obtain insurance” by removing the tax penalty.

“Those choices have legal consequences whether or not Congress foresaw them,” he said.

But the justices appeared skeptical; Chief Justice John Roberts challenged suggested that the plaintiffs’ arguments would significantly widen the legal standing for bringing a case to the court, by simply browsing through “thousands of pages” of law to “pick out" parts to challenge.

Three liberal justices on the court are likely to uphold the law. With at least two conservative justices who did not appear convinced that the law could be struck down in its entirety, a 5-4 ruling could ensure its survival.

The president has repeatedly sought to overturn the ACA while promising a “replacement” that he has never produced or outlined, despite the potential loss of coverage for millions of Americans with the dismantling of the healthcare law.

He also has promised to uphold protections for Americans with pre-existing medical conditions, currently covered by the ACA, which prevents insurers from denying coverage to the millions of Americans who have  them – but neither the president nor his congressional allies have produced any meaningful legislation to uphold those protections.

Tuesday’s hearing was scheduled just days after the president’s Democratic opponent Joe Biden defeated the incumbent in the 2020 presidential race, in which the future of healthcare – as well as healthcare during the coronavirus crisis – became a central issue.

President-elect Biden, who shepherded the congressional passage of the law as vice president to Mr Obama, plans to expand the law by adding a “public option” in which lower-income-earning Americans can automatically enroll.

He warned throughout the campaign that the president, if re-elected, would continue to mount attacks against the law until he was awarded a favourable outcome at the Supreme Court, to which he has now appointed three conservative justices.

The president’s recently confirmed justice Amy Coney Barrett, whose confirmation in the GOP-controlled Senate was held just days before Election Day, had previously challenged the court’s previous rulings on the ACA.

In 2017, the president’s Republican-supported tax overhaul legislation reduced the penalty attached to the individual mandate to $0. That move prompted a wave of lawsuits that attacked the legitimacy of the entire law.

The chief justice asked whether Congress would “want the rest of the law to survive if the unconstitutional provision were severed.”

"Congress left the rest of the law intact,” he said. “That seems to be a compelling answer to the question.”

The court is adjourned until 30 November, and a decision could arrive early next year.