Supreme Court unlikely to strike down Obamacare despite Democratic hysteria

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When former President Donald Trump nominated Justice Amy Coney Barrett to the Supreme Court last fall, opponents immediately raised the cry that she would overturn Obamacare.

Posters appeared all over Capitol Hill shortly after her nomination, warning of Barrett’s alleged healthcare extremism. Protesters gathered throughout the city to speak out against her nomination, warning that she would be the decisive vote in a case on the Affordable Care Act. In Congress, Democrats of all stripes characterized Barrett as a vote against President Barack Obama’s signature achievement.

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California Sen. Dianne Feinstein pointed to Barrett’s past criticism of the Affordable Care Act during the confirmation hearings and wondered if it would affect her thinking in the court’s case, which was to be heard days after the presidential election. Barrett assured her that it wouldn’t.

Other Democrats were blunter in their criticism: Rhode Island Sen. Sheldon Whitehouse claimed that Barrett would be “a judicial torpedo” to Obamacare. Then-presidential candidate Joe Biden told reporters on the campaign trail that Barrett was dangerous because “she wants to get rid of the Affordable Care Act.”

But when the court heard arguments in the case, California v. Texas, the majority of the justices signaled that the Republican challenge was not enough to bring down Obamacare. And as the court prepares to release its decision in the case in the coming weeks, few expect the act to fall.

The challenge, championed by Texas Attorney General Ken Paxton and supported by the Trump administration, claimed that since Congress had eliminated the individual mandate in 2017, the rest of the act must fall too. This case rested on a 2012 Supreme Court decision in which the justices saved Obamacare’s constitutionality by characterizing the mandate as a tax — and with no tax, Republicans argued there was no act.

During the November oral arguments, Chief Justice John Roberts told Texas Solicitor General Kyle Hawkins that a decision in which the court struck down the whole act was not likely.

“I think 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 said, referring to the fact that Congress did not gut the act when it lowered the mandate to zero.

Roberts added that he suspected that Congress, which was Republican-led in 2017, most likely wanted the court to use the opportunity to knock out the act.

“But that’s not our job,” he said.

Justice Brett Kavanaugh said that in his view, one that Roberts also expressed, the mandate was likely severable from the rest of the law, meaning that it could be cut out without taking down the rest of Obamacare.

“I agree with you that this is a straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place,” Kavanaugh told one of the lawyers defending Obamacare.

Four of the other conservative justices, including Barrett, questioned whether Texas even had standing to bring the case up in the first place.

Justice Clarence Thomas at one point asked Hawkins how Texas could claim any injury when Congress had wiped out the mandate.

“The individual mandate now has no enforcement mechanism, so it’s really hard to determine exactly what the threat is of an action against you,” Thomas said.

At the time that the case was argued, many conservative legal experts predicted that the court would uphold the act.

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“I don’t think it’s a case that has a real likelihood of succeeding. The arguments are bad,” Jonathan Adler, a law professor at Case Western Reserve University, told the Washington Examiner.

The federal government switched positions in the case when Biden took office this year. The president quickly reversed Trump’s position, stating that the new administration believed the mandate was severable from the rest of the act.

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