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A2 UP FRONT
Wednesday 11 november 2020
Continued from Front other rulings in recent years
"I think it's hard for you to in which the justices have
argue that Congress in- excised a problematic pro-
tended the entire act to fall vision from a law and al-
if the mandate were struck lowed the rest to remain in
down when the same Con- force.
gress that lowered the pen- In the first big ACA case in
alty to zero did not even 2012, Justices Samuel Alito
try to repeal the rest of the and Thomas voted to strike
act. I think, frankly, that down the entire law. Rob-
they wanted the court to erts and Justices Stephen
do that, but that's not our Breyer, Elena Kagan and
job," Roberts said. Sonia Sotomayor voted to
In the court's third major uphold it.
case over the 10-year-old Roberts has endured a tor-
law, popularly known as rent of conservative criti-
"Obamacare," Republi- cism, including from Trump,
can attorneys general in for his earlier opinions, in-
18 states and the adminis- cluding the initial case in
tration want the entire law 2012 that upheld the man-
to be struck down. That date.
would threaten coverage Eight years ago, the law's
for more than 23 million defenders emphasized
people, as well as millions that the mandate was the
of others with preexisting linchpin of the whole law,
conditions that now would Roberts said to Donald Ver-
include COVID-19. rilli, who represented the
California, leading a group House on Tuesday, but was
of Democratic-controlled the Obama administra-
states, and the Democrat- tion's top Supreme Court
ic-controlled U.S. House of lawyer in 2012. "But now the
Representatives are urging representation is that, 'Oh
the court to leave the law no, everything is fine with-
in place. A demonstrator holds a sign in front of the U.S. Supreme Court as arguments are heard about the out it.' Why the bait and
The Supreme Court could Affordable Care Act Tuesday, Nov. 10, 2020, in Washington. switch?" Roberts asked.
have heard the case be- Associated Press The law originally had sub-
fore the election, but set sidies and other carrots to
arguments for a week af- a nod to current times, to right?" Justice Amy Coney Roberts. entice people to enroll in
ter. The timing could add wear a mask. Barrett said to Texas Solici- The current case stems health insurance, as well
a wrinkle to the case since "I assume that in most plac- tor General Kyle Hawkins. from a change made by as a stick, the penalty, Ver-
President-elect Joe Biden es there is no penalty for A ruling that those par- the Republican-controlled rilli said. "It's turned out that
strongly supports the health wearing a face mask or a ties do not have that right, Congress in 2017 that re- the carrots work without
care law. mask during COVID, but known as legal standing, duced the penalty for not the stick," he said.
Speaking after the argu- there is some degree of op- would result in the dismissal obtaining health insurance A limited ruling would have
ments, Biden called the probrium if one does not of the case and leave the to zero. Without the pen- little real-world conse-
Republican-backed chal- wear it in certain settings," entire law in place, includ- alty, the law's mandate to quence. The case could
lenge to the law "cruel and Justice Clarence Thomas ing the mandate. have health insurance is also be rendered irrelevant
needlessly divisive" and said. Questions from Barrett, who unconstitutional, the GOP- if the new Congress were
vowed to enact reforms to The court also spent a fair joined the court late last led states argue. to restore a modest penalty
expand coverage when amount of time debating month following her hurried If the mandate goes, they for not buying health insur-
he's in office next January, whether the GOP-led states nomination and confirma- say, the rest of the law ance.
regardless of the outcome and several individuals who tion to replace the late Jus- should go with it because The arguments were not
of the Supreme Court case. initially filed lawsuits had tice Ruth Bader Ginsburg, the mandate was central without their lighter mo-
Tuesday's arguments, con- the right to go into court. did not point to a clear out- to the law's passage. ments, especially in an ex-
ducted by telephone and The suits are against the come. Trump's other high- However, enrollment in the change between Breyer
lasting two hours, reached federal government and court appointee is Justice law's insurance markets has and Jeffrey Wall, Trump's
back to the earlier cases U.S. agencies, "but doesn't Neil Gorsuch. stayed relatively stable at top Supreme Court lawyer,
and also included remind- it really seem that Congress The three Trump appoin- more than 11 million peo- over whether the mandate
ers of the coronavirus pan- is the one who's injured the tees have never ruled on ple, even after the effec- that Americans "shall" have
demic. The justices asked individual plaintiffs here the substance of the health tive date of the penalty's insurance means anything
about other mandates, and you can't sue Congress care law. Barrett, though, elimination in 2019. Ac- now that the penalty is
only hypothetical, that and say: 'Hey, you've put us has been critical of the cording to the nonpartisan gone.
might have no penalties under this mandate that's court's earlier major health Kaiser Family Foundation, Breyer said "shall" is used in
attached: To fly a flag, to forcing us to buy insurance care decisions sustaining enrollment dropped by many homes as an earnest
mow the lawn or even, in and that's harming us,' the law, both written by about 300,000 people from request, not a threat.
2018 to 2019. Kaiser esti- "In my family, when I tell
mates 11.4 million people my kids that they shall do
have coverage this year. things, that's a command
An additional 12 million backed by a penalty," Wall
people have coverage said.
through the law's Medicaid Breyer replied, "Well, that's
expansion. a much more organized
If the case turns on the le- family than mine."
gal doctrine of severabil- A decision is expected by
ity, it would be in line with late spring.q