The U.S. Supreme Court on Tuesday grappled with whether all of Obamacare should be thrown out in a challenge by Republican-governed states, backed by President Donald Trump’s administration, with two conservative justices suggesting the law should remain intact even if one provision is struck down.
Chief Justice John Roberts and fellow conservative Brett Kavanaugh both asked questions that suggested they were skeptical of Republican arguments that all of Obamacare must fall even if one provision, known as the individual mandate, is found to be unconstitutional. That provision required people to obtain insurance or pay a financial penalty.
“It’s hard for you to argue that Congress intended the entire Act to fall if the mandate was struck down,” Roberts said, noting that Congress did not repeal the entire law in 2017 when it eliminated the financial penalty under the individual mandate.
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Chief Justice John Roberts and Justice Brett Kavanaugh both signaled they aren’t prepared to strike down the entire Affordable Care Act as the court weighed the fate of the landmark health law.https://t.co/QPHwnq31h4
— Laura Litvan (@LauraLitvan) November 10, 2020
Both Kavanaugh and Roberts have suggested this morning that they may view the individual mandate as severable from the rest of the law.
If those two justices join the court’s three liberals in finding that the mandate is severable, that would be five votes to save the ACA.
— SCOTUSblog (@SCOTUSblog) November 10, 2020
This is the most important line that any Justice could’ve said at this morning’s #ACA argument.
If Justice Kavanaugh believes that the individual mandate is “severable” from the rest of the statute, then there’s no way to count to five votes to throw out the *entire* law. https://t.co/OV7EfTsSAy
— Steve Vladeck (@steve_vladeck) November 10, 2020
— Greg Stohr (@GregStohr) November 10, 2020