According to The Washington Post, a challenge to the Affordable Care Act by Republican-led states and the Trump administration looked ready to fail as a majority of the U.S. Supreme Court seemed poised to uphold most of the law.
Two key members of the court — Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh — said that Congress’s decision in 2017 to zero-out the penalty for not buying health insurance did not indicate a desire to kill the entire law.
“I tend to agree with you this is a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place,” Kavanaugh said to a lawyer defending the law.
Roberts suggested that the court should not do what Congress had failed to do itself, repeal the law. The Post noted that it was Roberts who “wrote the 2012 Supreme Court decision upholding the act’s constitutionality.”
“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 told Kyle D. Hawkins, the Texas solicitor general leading the red-state effort.
“I think, frankly, that they wanted the court to do that. But that’s not our job.”
The Post noted that the three liberal justices were prepared to defend the ACA, which means the addition of Roberts and Kavanaugh would indicate a majority. The newspaper added that “it was unclear if other conservative justices thought the objecting states and the Trump administration had made its case.”