Justices Signal Obamacare Will Survive

question was how on what grounds? First, the justices have to decide whether the challengers even have a legal right to sue, called standing, and Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh posed several hypotheticals to determine this. Let's say Congress passes a law saying everybody has to mow their lawn once a week. Uh. And they even make a lot of findings about why that's

a good thing. You know, it makes the country look neater, you get fresh air if you have to do that, supports the lawnmower business. Um. And but the fine for violating it is zero zero dollars. Um, do they have standing? I assume that in most places there is no penalty for wearing a face math or a mask during covid um, but there is some degree of approbrium if one does not wear it in certain settings. Suppose Congress passed the law requiring every American who lives in a house to

fly an American flag in front of the house. There's no penalty. My guest is Abby Gluck, a professor at Yale Law School and the founding faculty director of the Solomon Center for Health Law and Policy. Happy Let's start with the basics. Why is Obamacare before the Supreme Court again?

So this is actually the seventh time the Affordable Care Act has been in a Supreme Court in eight years, and it is the third time the Supportable Care Act has sased what we call an existential challenge, a challenge to its entire being. And the reason the case is here is that Congress in decided, after seventy failed attempts to appeal and replace the laws, that it was able to do one thing, one symbolic thing, and that is zero out the penalty associated with the insurance purchase requirements,

the infamous mandates, the insurance mandate. This, as you might remember, had been the focal point of the first litigation long been held up there as a symbol of what anti affordable tax folks really don't like. So Congress zeros out the penalty. The mandate is no longer enforceable, and in

the real world that really has relatively little effects. And the reason that has relatively little effect is that the mandate had never really been fully enforced, the markets that acclimated to the mandate not existing, and so by the time the mandate is actually as he wrote out, the effect on the market is relatively little. So how do

we get to the court? Well, eighteen Red States of the Department of Justice took that argument one step further and said, look, now the mandate is no longer constitutional. The reason the mandate is no longer constitutional is that the Supreme Court, in an earlier case in twenty twelve and f I d. Versus abilious upheld the mandate as attacks to the penalty of zero. They argued, it can't be attacked still relatively insignificant, given that the mandate was

not really enforced. However, they weren't even further than that, and argued that the entire Affordable Charact was so inextricably tied to the mandate that the whole two thousand piece law had to go down with it, and they might have been further and said Congress told the court as much. Congressise effectively instructed the Court to strike the entire statute down, even after Congress decided not to strict to church you down. So it's kind of a preposterous set effect that brought

us to earlier. So the first question was whether the challengers here have standing to sue, And we heard all kinds of hypotheticals from the justice is about mowing the lawn, wearing a mask, flying the flag. What were they getting at? Yes, So I think it was really interesting start to the oral argument. Um, we had all the justices in our first line of question. We're asking these stand main questions.

And so while everyone who's sort of listening in waiting to get to the consequential question of will be a a survive Uh, the Court took the entire time for the California Solicitor General to spend on the threshold question of standing. So why is that important? First of all, standing is a threshold question. If the parties aren't injured

deficients to bring the case, the case goes away. So it's important that the courts from the time on that second, you've got to remember that these standing issues are important to the court beyond the context of the Affordable Care Act. Whatever happened to the Affordable Care Act this year, UM may well be tied just to the Affordable Care Act. Of course, if they affirm the presumption of sever ability,

that's very important. But there are important standing issues about the ability of states to bring cases and what kind of injury individuals need to bring cases, and the Court cares about those issues a lot in the long term. So I was not surprising to the justices, uh, focusing on that for the first round of questions. What was

the meaning of all those questions? You're right, there are a lot of interesting hypothetical where if there's a requirement that you were a mask, but there's no penalty to enforce it. Where if there's a requirement to everybody knows their lawns and there's no penalty to enforce it, and so on. And when they were trying to get at was the question of um, whether you could be sufficiently injured by failing to obey a requirement that doesn't have

an enforcement provision. So an example that the Chief Justice gave was, uh, if you decided if you were then asked, have you ever broken a law on an employment form and you decided to say not to mow your lawn? Um, would you have to check the box to say yes,

I wrote the law or not? And they were trying to use those hypotheticals to get the question about whether an unenforceable requirement which is how the justice were describing as for those hypotheticals, would be sufficient to hook injury onto for purpose of standing, knowing that you can't definitively ten from the justices questions, do you think that there are enough votes to say that there is standing and

they can go to the merits question? So I think that we don't know how the court is going to rule on standing. There were so many different questions going in so many different areas that it's very hard to tell. If I were a betting person, I would that slightly, although I've never been on the court to say that the Court will get to the Merritt's question, because there did seem to be enough justices that were interested, uh

in getting to the merriage question. And in fact, and as we'll talk about in upholding the Affordable Care Act. But there is one pretty significant piece of the standing argument um which I think is relatively important, and it's just the argument that the Department of Justice is making it which there was effectively trying to bootstrap standing by using the entire Affordable Care Acts to challenge one particular provision.

So based me the day argument is because some of the plaintiffs were harmed by some provisions in the Affordable Care Act, they can then argue that because all of the provisions of the Affordable Character are tied together, that they're inseparable. That allows them to get into courts to argue that demandated are constitutional, and therefore all the provisions, including the one that offends them, will be struck down. And just the So the mayor says, well, that's really

your argument. Shouldn't they have just challenged the provision that they don't like. Why are they trying to come into court through the back door of arguing the whole statute is inextriculably tied together, so I can therefore challenge anything

I want right to bring the whole statute down. So just to so do majors sort of call them on that, I think just as Thomas is very, very worried about this idea of thinking about the statute as inseparable, as a single coherent unit that can't be broken apart for

purposes of the stand. The youngquery, because you saw how that could just open up and explode This idea of articles were standing, would make it very easy for lit again to get into courts of challenge thing by bootstepping arguments on the dickerent positions that had no harmful effect

on them whatsoever. When the Justice is turned to considering the merits of the case and whether the individual mandate is still constitutional after Congress zero and out the penalty, Chief Justice John Roberts questioned former Solicitor General Donald Vailli, who now represents the House, about his apparent change of position since the arguments in. But now the representation is that who know everything's fine without it? Uh? Why why

de bate and switched? And was was Congress wrong when it said that the mandate was the key to the whole thing that we spent spent all that time talking about broccoli for nothing? Justice Steven Bryer pointed to many laws that tell the public to do things without any horseman provisions and he pressed the Texas Solicitor General to

explain why those statutes aren't now open to challenge. World War One defense statutes, buy war bonds, an environmental statute plant a tree, a one of a thousand statutes commemorating something beautiful, city's day, clean up the yard. Are all those statutes suddenly open to challenge? I've been talking to Abbey Gluck, a professor at Yale Law School. Abbey, where do you think that justice has stood on the constitutionality

of the individual mandate? Which interesting about the discussion on the mandate is that, again, this is more an area in which I don't think we can predict if a mandate itself will survive. Uh As I said before, I do think it's more likely than that if the rest of the Affordable Care Act will survive. And that's a consequential question in the case, because I said earlier, mandate has not been fully enforced, So whether or not a

survived has relatively about practical significance. But the oil argument was basically a debate about different kinds of scenarios. One scenario is could this possibly still be attacked? There's a really interesting set of questions um that you know, rotated among course search and Alito and Justice of Mayor, among others, where they were exploring the idea of whether attack with a number of zero on it could still be attacked

in justice of mariority is some really helpful examples. For instance, she asked the lawyers, well, what if Congress set attacks and then phased it out down to zero over a course of years, would still be attacked? Would have Congress enactive attack and gave it a delayed beginning and said it is zero for the first few years and then raised the level over time, would that still be attacks? And you turned into the challenger said yes. So she

pressed and said, how is this different? How is sort of attacked and waiting attacks temporarily set of zero not attacked for purposes of its constitutional authority? That was one

set of questions. Then there's another set of questions that sort of painted at the idea that maybe this is no longer attacked at all, and that would make it invalid because then nothing could justify it except for the commerce clause, as a court already held in twenty twelve that the mandate was not a valid exercise of Congress's commerce power just to Starrett was very interested in that argument.

And then you know, throughout there was this other, this other set of arguments about you know, how to conceptualize this at all. Maybe it's not a tax, maybe it's the mandate, Maybe it's something different entirely. Maybe it's just a precatory requirement, as Formers really said, you know, it's not operative, right, So that's the language that the Blue states in the House are using it. It's not a requirement, it's not a command. And even if you don't see

this attack, it's nothing operative. It has no effect, it can't harm anybody. And so those are the kind of different scenarios that the Court was moving amom and was trying to figure out how it was going to characterize what we call the mandate with the court construted attacks. What did you make of Justice Roberts asking for really why the bait and switch and we've been talking about broccoli all this time for nothing? Yeah, that was a

great exchange. So the argument opened up with the California Plis General. It was not surprisingly they used up all of his time on the standing issues. So when they get to r Really who was overtending the House, they suddenly are ready to turn to the mert, so they kind of have to clear the air. And the reason I have to clear the air is that really was

Barack Obama Solicitor General. He defended the Affordable Care Act in twenty twelve and twenty fifteen, and the Supreme Court and back in the actually argued that the mandate was so essential to the operation of a few of the insurance provision and the Affordable Care Act that if the mandate was struck down, he suggested, the courts are strug down a few of those insurance provisions as well. Know.

Roberts comes in and says, we had this whole debate in twelve and you argued here about the mandate's essentiality. That was the broccoli debate, and now you're back saying it doesn't matter, so explain yourself. And that was really important because it gave really an opportunity to both bring us into the present, to move us back from the twelve exchange, which is really no longer legally relevant, and also to explain why the people medicating positions have switched.

And what we really said was well, back then, it seemed to Congress that it needed in his words, both carrots and sticks to get the Affordable Flare Act markets working effectively. The mandate was the stick, and he said, over time it became clear that actually you don't need the stick. The parrots are working just fine. And so we said, the seventeen Congress, enlightened by these intervening years, informed by data including a CBO report, made the decision

that the stick was no longer necessary. So what once was thought to be important, it's not important anymore. And that's why the appropriate to sever what's really interesting about that? If we had another great analogy later in the argument by Justice Alito, who says, you know, once upon a time there was a piece that was really essential to flying the plane, and now that piece has been taken

out when the plane hasn't crashed. Right. That's another way of sort of explaining to change of events that happens over time. And of course it's the case that Congress is allowed to offer statutes as circumstances change, and that's exactly what has been in missing. At one point, Justice Briar seemed almost exasperated with the Texas Solicitor General when he was questioning him about other laws that like Obamacare,

don't have a mechanism for enforcement explain Briar's concern. Throughout the argument, there was a repeated line of question about so called pregatory laws, laws that require that sort of ask people to do something. We don't have any enforcement mechanism, So Jesice Briar kept giving examples of many laws he

remembered from his time in the Senate. He Spurs who was time in the Senate, and said, we had laws declaring X y Z a commemorative day building this post office, all sorts of laws that sort of urged but don't have a penalty, don't have a tax associated with it. And Briar looked at the Solicitor General and said, are you telling me that all of those hundreds of laws that I remember across the U. S Code that asked people to do things who don't have an import fit mechanism,

are all of those invalid? Because that's the theory they were boarding here with respect to the mandate. And he got very frustrated because he took the Texas Solicitor General on the Department of Justice and making the claim that they had somehow prus the entire US Code and searched for provisions like this and found that none of them used the shall language that the mandate uses, that the

mandate was really a command. And Briar pressed them and said, have you actually read every statute in the US Code? Are you absolutely sure? But I didn't remember it that way from my time in Congress, and I remember writing a lot of those laws that don't have an enforcement mechanism. And in the end the lawyer sort of step back and said, no, Justice, we haven't read every single law in the US Code. So you know, I bet Justice Briar's law parks are going to be very busy this weekend.

It's coming the US Code. I'm serious for these examples because what the challenger's lawyers round up sort of digging their feet into with this idea that only the Affordable Care Acts provision uses the word shall. Right, Briar said, you know, are you sure? Right? You are? You absolutely sure? And then they started having discussions about is it shall,

is it should? Doesn't make a difference. So I think Justice Briar is informed by his knowledge of the US Code, his knowledge of the statutory of that have faith in this kind of mechanism seemed familiar to him, didn't seem that unusual for Converse to put in the provision that has no enforcement mechanism. Um, just really pressing practice in

the Department of just about that. And now we come to the third part of the analysis, and what I think is the headline about the arguments, which is that two conservative justices, the Chief Justice and Justice Kavanaugh, seemed to indicate in no uncertain terms that the mandate could be severed from the rest of the law and Obamacare

will survive. Here's Justice Kavanaugh. I tend to agree with you on this, a very straightforward case for severability under our precedents, meaning that we would exercise the mandate and leave the rest of the act in place. Yeah, I think that's right, and I think you're right that that is to have mine. You know, as I've been saying throughout this conversation, Um, you know, the standing issues are very important in general as the court to find a

standing Jars FURTA. It's very important for the court to resolve this threshold question about whether litigants can take these jeep dousand page laws find something offensive, uh, and us an inseverability argument to create standing where there is none. That's important. The second to your question of whether the

mandate is unconstitutional. You know, that's important to some extent, but we've already had that discussion, and that, if I be, we already know where most of the court is on a commerce cause and the mandate's operation on the ground is not that significant. But this significant question, obviously is

what happens to the rest of the law. That's the question that affects twenty million people who have thrown up the roles, the hundred million people who have previous in conditions, all the billions of dollars in Medicare and Medicaid and so on, and really want this to be economy the health care system. So that's the big question and to that question, and this is why you're right, that is the headline. Uh, it does look like the affordable character

it's likely to survive. Um. You know, we didn't hear too much from the three liberal justices specifically about severability. UM. But we did hear quite a bit from Justice Savanaugh and Chief Justice Roberts. Both justices realign themselves with a

strong presumption of separability. Justice Robert said he would find it hard to believe that the Court should write down the entire Affordable Care Acts from Congress itself after seventies failed attempts to repeal and replace, decided only to zero out that one provision and leave the rest of the law intact. And just shee. Justice Robert said, given that Congress did that, given that Congress left the rest of the law intact, he said, it's not our job right

to strike it down. So that was really interesting. Um. Justice Kavanaugh said more than one that he thought the severability argument was very strong here. He sort of laid his cars on the table, and both Kavanaugh and Roberts um, we're very spectacle of this argument made by Texas and the Department of Justice that Congress somehow dictated to the Court in the Affordable Care Act that come what may, it should write down the Affordable Care Act, no matter

what it demanded a struck down. And that argument is based on statutory findings of the law that were inserted into the law to justify Congresses power under the Commerce Clause. As you know, the Court rejected Congress's Commerce Clause justifications, but the language from those finding, who was talked about the mandates importance to the markets is what the challenger sees. Don Justice Kavanaugh and to Justice Roberts really weren't having any of that. They said, you know what, I know

what an inseparability clause looks like. The US Code has plenty of examples, and that's not what this looks like. When Congress wants to write in separability clause, it knows how to do that. And I think those are very important moments in the our arguments for the Affordable Care Act. Don't really know where Barrett Thomas or such oral leader

are on separability. It is interesting that Justice Thomas, who in some past cases has indicated desire to reshaped severability doctrine, just kept saying sever ability is a question of statutory interpretation. He didn't seem to resist the notion of severability in general. And we had that analogy from Justice Alito saying, well, we thought the mandate was so important, but we've taken it out and the point is so flying. That sounds

kind of like a severability argument to me um. And then we really didn't hear anything from Core such a Barrett one way or the other about how they might rule on severability if they do ever get to that question. And mean, let me ask you this question, why do you think that the Chief Justice and Justice Kavanaugh so plainly laid their cards on the table, as you say, to say that you know, basically we're going to vote that this is severable. Well, you know I've written this before.

I think of you and I discussed this before as well. You know, Justice and Justice Kavana just wrote opinions last term on severability. Right. Each of them authored important opinions, strongly reaffirming the presumption in favor of separability. Both of them used the same analogy in those opinions, that's um

Sellia law and the American Political Consultants case. Both of them used the same analogy, comparing severability to surgical severance rather than wholesale destruction, a scalpel rather than a bulldozer. Both of them so sort of in tandem last spring reaffirming that auction. And it's very very hard for me to believe that in writing those cases they didn't have the Affordable Care Acts. Somewhere in the back of their mind they knew the case was coming. The new severability

is going to be important. Just as Kavanaugh wrote about severability in the Law Review article before he was on the Supreme Court, talking about the importance of the strong presumption.

So I think it would have been actually very strange if neither of them had mentioned the presumption and favorability or kind of alignment topic with it, because it would have looked like they were departing from this rule, that the settled rule to each of them just reaffirmed a few months ago somehow for political reasons through the Affordable Care Act. So I wasn't really surprised, um, but it was refreshing to see them, you know, be rather upfront

about it. Thanks for being on the Bloomberg Law Show, Abbey Bess, Professor Abby Gluck of Yale Law School, the faculty director of the Solomon Center for Health Law and Policy. The Supreme Court will issue its decision in the Obamacare case by June. With healthcare accounting for a sixth of the US economy, the stakes are massive, and the challenge jeopardizes the healthcare of more than one five million Americans with pre existing conditions, including those who have had COVID nineteen,

according to the Center for American Progress. And that's it for this edition of the Bloomberg Law Show. I'm June gross Out. Thanks so much for listening. You can always get the latest legal news on the Bloomberg Law Podcast. You can find them on Apple podcast, SoundCloud, or at www dot bloomberg dot com slash podcast, slash Law, and remember to tune to The Bloomberg Law Show every weeknight, ten pm Eastern, right here on Bloomberg Radio