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Erica Asbell
National Academy of Elder Law Attorneys
703-942-5711
NAELA News Journal - NAELA News Online

Affordable Care Act Oral Arguments: Supreme Court May Uphold ACA

By Erica Asbell, Esq.
Published December 2020
On November 10, 2020, the Supreme Court heard oral arguments to determine if the Court should overturn the entirety of the Affordable Care Act (ACA). The arguments focused on whether Texas and several other states have standing to sue and the constitutionality of the ACA individual mandate. Based on oral arguments, both news and academic sources have indicated that the Supreme Court will likely issue a decision that upholds the ACA. 

Background
In June 2012, the Supreme Court issued a decision on whether the tax penalty in the ACA for individuals without health insurance was constitutional. In a 5-4 vote, the Court upheld this individual mandate as constitutional under Congress’ power to tax citizens. Congress, in December 2017, then voted affirmatively on the Tax Cuts and Jobs Act of 2017, which made the tax penalty for individuals without health insurance at zero dollars beginning in January 2019. The case now heard by the Supreme Court, California v. Texas, includes 18 states that have filed a lawsuit that challenges whether the individual mandate and the ACA in its entirety are constitutional. In response, California, 20 other states, and the District of Columbia are defending the constitutionality of the ACA.

Issues in the Case
The ACA case focuses on three key issues: (1) standing of Texas and the other states to sue, (2) the constitutionality of the individual mandate, and (3) whether the ACA can stand by severing the individual mandate. For standing, Texas and other states challenging the ACA need to show that they have suffered an actual injury. With the tax penalty now at zero dollars, it raises significant questions about whether Texas and the other challenging states have standing. The constitutionality of the mandate centers on the 2012 Supreme Court decision that upheld the ACA under the Commerce Clause and Congress’ right to tax. The Justices are now hearing this case after Congress zeroed out the tax penalty in 2017, which requires the Justices to re-visit the 2012 court decision and analyze whether the individual mandate is constitutional under a different clause or case law. One issue that the Justices raised during oral arguments is the severability of the individual mandate from the ACA. Prior Supreme Court decisions have set a precedent of the Court looking at Congress’ intent and upholding statutes by severing the sections that are unconstitutional, rather than striking down the entire statute.

Oral Arguments Appear to Favor Maintaining the ACA
During oral arguments, several Justices had questions indicating skepticism about overturning the ACA. Chief Justice John Roberts, who voted to uphold the ACA in the 2012 case, and Justice Brett Kavanagh poised questions about the severability of the individual mandate from the ACA. Chief Justice Roberts stated: “It's hard for you to argue that Congress intended the entire act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” when addressing the attorney representing Texas and the other states challenging the ACA. Justice Kavanagh raised the issue of severability and stated: "I tend to agree with you, this is a very straight forward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place," when addressing the attorney representing California and the other states defending the ACA. 

Conclusion
Although questions raised by the Justices during oral arguments give hope that the ACA will stand, nothing is completely certain until the Justices issue a decision, likely in the summer of 2021. The ACA has provided health coverage for tens of millions of Americans who otherwise would have been uninsured, including over 20 million Americans that would lose coverage if the Supreme Court struck down the ACA.
About the Author
Erica Asbell, Esq., is the NAELA Public Policy Associate for State Chapters.