Obamacare's latest Supreme Court battle
| EDITOR'S NOTE
Hello,
This is CNBC Supreme Court reporter Tucker Higgins filling in for politics editor Mike Calia.
Obamacare will face its latest legal test today, as the most conservative Supreme Court in generations gears up to consider the law for a third time. The law's fate is uncertain. The justices upheld the Affordable Care Act twice before, in 2012 and 2015. But Justice Amy Coney Barrett's confirmation to the bench, giving it a 6-3 conservative majority, has health-care activists worried. If Obamacare is eliminated, more than 20 million people could lose their coverage. The burden would fall particularly hard on poor people and those with preexisting conditions. The health insurance industry would also be upended.
Legal experts think today's challenge, which was brought by Texas and other red states, is likely to fail. But they thought that it would fail in the lower courts, too, and were largely wrong. Both of the lower courts that have heard the case so far, including the 5th U.S. Circuit Court of Appeals, have sided with the red states. It is likely that we will be waiting until the end of June, when the top court generally wraps up its decision-making, to get a definitive answer. More clues could come today during arguments, which will be done by telephone and streamed live to the public because of the pandemic.
The case centers on the law's individual mandate, which requires most Americans to get health insurance coverage or pay a penalty. Chief Justice John Roberts said the mandate was permissible in 2012 under Congress's taxing power. The red states are arguing that the mandate became unconstitutional when Republicans in Congress set the penalty to $0 in 2017, because, they say, it's no longer a tax. The red states and the Trump administration, via the Department of Justice, don't stop there. They also claim that because the individual mandate is unconstitutional, the whole law must fall.
The court could preserve Obamacare in at least two ways. First, they could just say that the individual mandate is constitutional. That would end the matter. Even if they rule that it is unconstitutional, they could simply separate, or "sever," the mandate from the rest of Obamacare. Because the mandate is already set at $0, that would not have a dramatic impact. The good news for Democrats is that questions about so-called severability are not generally partisan. The chief justice and conservative Justices Brett Kavanaugh and Samuel Alito have said laws have a presumption of severability. Barrett, who has otherwise been critical of Obamacare, hasn't written on the subject.
If the court does strike down the law, Democrats would have an uphill climb at replacing it, even with President-elect Joe Biden's victory. The battle for control of the Senate appears headed for a knife fight in Georgia, where it looks like two races are headed for a runoff. If Democrats win both, they will be guaranteed to control at least half of the Senate's 100 seats – a bare majority when you factor in Vice President-elect Kamala Harris' would-be tie-breaking vote.
With a raging pandemic and millions of newly unemployed people booted from their health-care coverage, a defeat for Obamacare could present the Biden administration with yet another crisis in its first months.
Listen to arguments live on CNBC.com at 10 a.m. ET.
Thoughts? Email Mike Calia at CNBCPolitics@nbcuni.com.
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