During the COVID-19 pandemic and one of the most financially precarious situations in recent U.S. history, the Affordable Care Act is being challenged in the Supreme Court, leaving the health care of 20,000,000 Americans — and 300,000 Minnesotans — hanging in the balance.
On Tuesday, the Supreme Court heard oral arguments for the case, California v. Texas, which has been ongoing since 2018. While the fate of the law will remain unclear until the Court officially issues a decision, it appeared that at least two conservatives on the court, Neil Gorsuch and Brett Kavanuagh, did not believe in striking down the whole law.
The case is primarily concerned with the “individual mandate,” a component of the ACA that required Americans without insurance to pay a penalty. In 2017, Congress set that penalty to $0, and that change is the basis of the lawsuit. The Trump administration, Texas, and 17 other states argue that it’s unconstitutional for Congress to use the power of purse (taxation) if the tax is $0. And up until now, lower courts have agreed, deciding that without the individual mandate tax, some or all of the Affordable Care Act (ACA) could be unconstitutional.
There are several potential outcomes: the court could uphold the entire law, something the smaller liberal wing of the court will likely favor; they could strike down just the individual mandate portion of the law, or they could strike down the whole law.
If the entire law is struck down, Americans with pre-existing medical conditions could be disqualified from buying a health insurance policy. Having had COVID-19 could become one such pre-existing condition. In 2019, The Kaiser Health Foundation found that around 54 million people would be outright denied health care because of their pre-existing conditions.
Protect Our Care is one such organization created to push-back against striking down the law. And they’ve found allies in prominent Minnesotans, like former Administrator of the Centers for Medicare and Medicaid Services, Andy Slavitt, who is from Minnesota and lives in Edina; and Attorney General Keith Ellison.
“The court has to take real stock of a dramatic impact this case would have on the country,” Slavitt said on a press call with Protect Our Care this week. “I’d venture to say a near collapse from a health care and economic standpoint.”
In May, Minnesota Attorney General Keith Ellison made Minnesota a party to the case, joining California, eighteen other states, and the District of Columbia in defending the ACA. Ellison was also on the press call, which was hosted by Protect Our Care, an organization solely devoted to upholding the ACA.
“We are fighting as hard as we can to make sure an illness doesn’t mean financial ruin and bankruptcy,” Ellison said. “We’re in this fight. We’re here to defend this law, and we hope the Supreme Court does the right thing and carries out the will of the people.”
‘Severability’ at issue
Oral arguments on the 10th were limited to four lawyers and the nine justices. Challenging the law were Kylie Hawins, solicitor general of Texas, and Jeffrey Wall, acting solicitor general of the Department of Justice. Defending the law were Donald Verrilli Jr, the former solicitor general of the United States and a lawyer representing Congress, and Michael Mongan, solicitor general of California.
Mongan clearly laid out his argument in easily understandable terms. “It would cause enormous regulatory disruption, upend the markets, cast 20 million Americans off health insurance during a pandemic, and cost the states tens of billions of dollars during a fiscal crisis,” he said. “There is no basis for that result in text, intent, or precedent.”
Most of the discussion centered around this question of “severability,” the ability for the individual mandate to be struck down but for the rest of the law to remain on the books.
Hawkins argued that “the proper course is to take Congress at its word and declare the mandate unconstitutional and inserverable from the remainder of the ACA,” meaning that if the court thinks the individual mandate is unconstitutional, it must strike down the entire ACA law as unconstitutional.
He suggested that because Congress did not specify that the law could stand without the mandate, they intended for the whole law to be struck down if the individual mandate is struck down (this is contrary to what Congress’ own lawyer, Verilli, has said).
A majority of the justices seemed skeptical.
“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,” said Chief Justice John Roberts, referring to the changes made to the law in 2017. “I think frankly that they wanted the court to do that, but that’s not our job.”
Brett Kavanuagh, a conservative justice appointed by Trump, said point blank to Verilli, Congress’ appointed lawyer: “I tend to agree with you on this very straightforward case for severability” — that is, that the individual mandate could be struck down without affecting the rest of the ACA.
Where the delegation stands
Democrats in Minnesota’s Congressional delegation, like Rep. Ilhan Omar and Rep. Angie Craig, have taken an active role in criticizing the lawsuit. “The Trump administration is attempting to dismantle the ACA in the Supreme Court,” Craig tweeted on Tuesday. “We must #SaveTheACA and protect health care for the 2.3 million Minnesotans with preexisting conditions.”
Minnesota Republicans, on the other hand, have either been cagey about the potential outcome or explicitly supported the lawsuit, which is backed by President Donald Trump.
In October, Rep. Pete Stauber would not answer what he would do if the law is struck down, saying it was “presumptuous” to ask. He said he didn’t know “whether it’s going to be struck down or not… cause, you know, we don’t know.” The details of any plan, should the law be struck down, are still not clear.
Sen. Amy Klobuchar gave a dire warning about the ACA in September, during the appointment hearings for now-Justice Amy Coney Barrett.
“If President Trump’s nominee is confirmed before oral arguments on November 10,” she said, “Yes, she could easily cast a deciding vote to strike down the law in its entirety.”
Barrett was appointed in late October. The proceedings did not give much clarity on how Barrett would rule.
The final word on the fate of the law is unclear, but defenders see signs of hope in the line of questioning taken by conservative justices like Kavanaugh and Gorsuch, who both appeared to suggest that they did not believe the entire law should be struck down.
“The fact that we’re even here suggests something profoundly disappointing about the state of our politics and with Republicans around health care,” said Jeremy Drucker, who handles press for Protect Our Care. “The ACA was passed years ago, it’s embedded in the health care system, and it’s much more popular now than it was previously.”