POLITICS Bloomberg Businessweek November 16, 2020
45and two other Trump appointees, Neil Gorsuch and
Brett Kavanaugh.
The House of Representatives and a group of
Democratic-controlled states are defending the
measure. Advocates for patients, doctors, hospi-
tals, and insurance companies are urging the court
to uphold the law, warning of chaos should it be
invalidated in the midst of the pandemic.
Signed into law by President Obama, the
Affordable Care Act expanded the Medicaid
program for the poor, provided consumers with
subsidies, created marketplaces for insurance pol-
icies, required insurers to cover people with pre-
existing conditions, and let children stay on their
parents’ policies until age 26.
The fight in the high court centers on the ACA’s
so-called individual mandate to acquire insurance.
The Supreme Court upheld the provision in 2012
when Chief Justice John Roberts said it was a legit-
imate use of Congress’s taxing power because it
included a penalty for people who lacked policies.
When Republicans took control of Congress and
the White House in 2017, they zeroed out the tax
penalty, leaving the mandate with no practical con-
sequences. The Trump administration and states
ledbyTexasnowsaythemandatemustbestruck
downbecauseit nolongerqualifiesasa tax.They
alsosaythemandateis sointegraltothelaw,
evenwithoutanypenalty,thattherestofthe
ACAcan’tstandwithoutit.
Thatargumentcouldbea loser,evenwith
thecourt’sexpandedconservativemajority.
DuringtheNov. 10 session,Robertssuggested
hedisagreedwithargumentsforwipingoutall
ofObamacare.“Ithinkit’shardforyoutoargue
thatCongressintendedtheentireacttofallif the
mandatewerestruckdownif thesameCongress
thatloweredthepenaltytozerodidnoteventry
torepealtherestoftheact,”hesaid.
Anotherkeyjustice,Kavanaugh,seemedto
concur,suggestinghewould“sever”anuncon-
stitutionalprovisionfromtherestofthelaw.
“It’sa verystraightforwardcaseforseverabil-
ityunderourprecedents,meaningthatwe
wouldexcisethemandateandleavethe
restoftheactinplace,”hesaid.
EvensomewhoopposeObamacareare
skepticalofthecaseagainstit.Michael
Cannon, directorofhealthpolicy
studiesatthelibertar-
ianCatoInstitute,
saysthelawsuit
is meritless,
because the
18 statesand
two people challenging the law haven’t suffered
any injury that gives them a right to sue. He says he
views the ACA as unconstitutional and would like to
see it invalidated. “But you don’t throw out the rule-
book in order to do that,” Cannon says. “The goal
here is not just to have a win on health policy or to
spite John Roberts.”The House and the 20 states, led by California,
that are defending the law have the support of
all 47 Democratic and independent U.S. sen-
ators. By contrast, not a single Republican
member of Congress filed a brief backing the
Texas-led challenge.
“It’s not just that they are not supporting it. They
are opposing it because it’s politically harmful,”
says Josh Blackman, a constitutional law profes-
sor at South Texas College of Law Houston. “No
one wants the ACA killed at this point.” Blackman,
who supports the litigation challenging the law and
wrote a book on the 2012 case, said before the argu-
ments that he doubted there will be any votes on
the Supreme Court to strike it down entirely.
Although the elimination of the law may be
unlikely, it will be a live issue in the epic political
battle shaping up over Georgia, as outside groups
and both parties pour resources into swaying voters.
Under Georgia law, candidates for office must
reach a 50% vote threshold to claim a seat outright.
Incumbent GOP Senator David Perdue, who fell
just short on Nov. 3, will face Democrat Jon Ossoff
in a runoff. The state’s other Republican senator,
Kelly Loeffler, is also headed to a rematch, against
Democratic challenger Raphael Warnock.
Georgia is among the states seeking to over-
turn the ACA. Republican Governor Brian Kemp
recently announced federally approved state
health-care reforms that will expand Medicaid but
close healthcare.gov, the Obamacare marketplace,
to Georgia residents and direct them to private A pro-Obamacare
message at a Nov. 10
protest outside the
Supreme Court