Healthcare

“that’s not our job”

JM Ashby
Written by JM Ashby

If you were worried that the Supreme Court would finally strike down all of the Affordable Care Act now that the conservative majority has been expanded with the addition Justice Amy Barrett, I can't say there's zero chance that will happen does it look very unlikely at this point.

It's kind of a big deal when the chief justice of the court himself calls out the opposition for trying to use the court to accomplish what Republicans in Congress could not.

During yesterday's oral arguments, Chief Justice John Roberts bluntly said it's 'not their job' to repeal Obamacare even if the individual mandate is somehow unconstitutional.

"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," Roberts, who voted in 2012 to uphold the mandate, told Texas Solicitor General Kyle Hawkins, who argued on behalf of the 18 red states challenging the law.

The chief justice added that he believes Congress wanted the Supreme Court to strike down the full law, "but that's not our job."

"Under the severability question, we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed," Roberts said. "And here Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question."

Justice Brett Kavanaugh also more or less announced that he will vote against striking down the entire law.

Kavanaugh added that “this is a fairly straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”

It's very far from clear how the court will rule and exactly how the majority opinion will be worded, but it occurred to me if the individual mandate is ruled unconstitutional that could be very bad news for any future attempts to establish a more universal health care system.

Obamacare may survive Trump's conservative court, but what other damage may they do?

We can worry about that another time, I suppose, and just accept a likely victory in the decade-long war to overturn all of Obamacare based of a handful of technicalities. The most recent challenge to Obamacare, you may recall, centered on the meaning of a single word in a single sentence; the word "state."

It would not mean the process they abused to take control of the court was for naught because Trump's conservative court will likely deal many blows to liberal democracy in the coming years and even decades, but it would be amusing to me if they went through all of the trouble and still don't get what they want on the biggest issues like Obamacare and abortion. Conservatives took it very personally when Justice Neil Gorsuch wrote the majority opinion to uphold transgender rights to employment under the Civil Rights Act.

For his part, Chief Justice Roberts has now presided over three failed challenges to Obamacare and I think we can infer that he's sick of it. Justices Thomas and Alito will undoubtedly vote to repeal all of Obamacare because they are immoral goblins who hate the world almost as much as they hate themselves.

  • muselet

    The questions asked during oral arguments do not necessarily reflect a justice’s thinking or later voting. John Roberts and Brett Kavanaugh might or might not vote to remove the ACA, root and branch, although Roberts seems to be heartily sick of hearing challenges to the ACA.

    The dream result would be for the Supremes to rule that the 18 states have no standing to challenge the law—in order to have standing, a plaintiff must show a concrete, particularized injury to a legally protected interest, and it is a struggle to conjure up any such injury in this case—but that won’t happen because reasons.

    –alopecia

  • Draxiar

    I’d like to think, as CJ Roberts likely does, that this will be the end of this but sadly it probably won’t be. They’ll keep trying to fornicate with domestic fowl because they apparently like it when people die needlessly…just look at their willingness to wear a mask!

    Adding: Whenever something happens that makes them look bad (ex mass shooting) Republicans are the first to come out with “don’t make this political”. They make *everything* political- like masks, healthcare, reproductive rights, responsible gun ownership, climate destruction, etc. So let’s dispense with any fear of politicizing anything.

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