ObamaCare faces another Supreme Court test with bolstered conservative majority

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Supreme Court to hear ObamaCare case Tuesday

Cato Institute’s Ilya Shapiro tells ‘Fox & Friends’ there is no chance ObamaCare will be destroyed, but the individual mandate could be struck down.

For the third time since its inception a decade ago, the Affordable Care Act is headed to the Supreme Court, facing the most conservative panel of justices who have sat on the bench in years. 

The highest court in the nation will hear oral arguments Tuesday in a White House-backed legal challenge to the landmark health care law, often referred to as ObamaCare. 

Democrats made the ACA, and the lawsuit seeking to rule it unconstitutional, the centerpiece of their effort to block the confirmation of Justice Amy Coney Barrett last month. During the confirmation hearings, Democrats warned that Barett, whom President Trump nominated to replace the late Justice Ruth Bader Ginsburg, would vote to strike down the legislation.

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Her eventual confirmation to the court tilted its ideological balance 6-3 in favor of conservatives.

The latest case — California v. Texas, which is based on an earlier lawsuit brought by 21 Republican state attorneys general and endorsed by the Trump administration — argues the ACA was invalidated when Republicans in 2017 eliminated the financial penalty for Americans who don’t buy health insurance with the passage of the Tax Cuts and Jobs Act. 

The court initially upheld the law because of the individual mandate, which required Americans to purchase health insurance or pay a fine, under Congress’ vast taxing authority. The suit contends that if that part of the ACA is invalid, so is the rest of the law.

Legal scholars have laid out a complicated, murky process with no clear answer as to what will happen to the ACA when the conservative-dominated court considers the law Tuesday.

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The Supreme Court may ultimately agree with the Republican states that the individual mandate is unconstitutional. But justices have to address the complex legal concept of “severability:” If one part of the law is invalidated by the court, does the rest of it still stand?

“The court isn’t split on severability the way it is split on some other issues. Multiple conservative justices on the court have indicated that their approach to severability is not in line with the arguments that the plaintiffs are making in that case," Jonathan Adler, a law professor at the Case Western Reserve University School of Law, told Fox News.

Texas is arguing the individual mandate is unconstitutional and therefore so is the entire law. Last year, the 5th U.S. Circuit Court of Appeals ruled the insurance requirement is unconstitutional but charged a federal district court in Texas with reassessing how much of the legislation stood without the individual mandate in place.

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One of Trump’s appointees, Justice Brett Kavanaugh, has written opinions focused on the issue of severability, arguing that it’s the court’s obligation to leave as much of the law intact as possible. Over the summer, Kavanaugh authored an opinion, which was joined by conservative Justice Samuel Alito, on robocall restrictions, writing that the Supreme Court “presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute.”

Other legal experts suggested the court may be reluctant to strike down the health care law in its entirety during the coronavirus pandemic, which has infected more than 10 million Americans, the most in the world, and killed at least 237,700.

“To strike down an entire broad-based law based on a single provision is probably not where the court would want to go,” said Elizabeth Sepper, a law professor at the University of Texas.

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The ultimate outcome of the lawsuit will affect millions of Americans, and the repeal of the decade-old law could leave up to 32 million people without health insurance by 2026, according to a Congressional Budget Office report from 2017 about the effects of repealing the ACA.

Because of the pandemic, Tuesday's argument will be conducted via telephone and streamed live to the public. A decision is not expected until June.