But there is no resistance to reading the tea leaves. Here is what we learned:
Roberts and Kavanaugh seem to agree to keep most of the law intact
Put simply, Chief Justice John Roberts saved Obamacare in 2012, famously (or infamously, depending on your perspective) calling for the mandate to buy health insurance at a fee. Trump and the GOP-controlled Congress overturned that sanction three years ago, giving Republicans – including the Trump administration – a chance to return to court. If the tax is gone, they say, the logic of maintaining the law is gone.
The bigger question is whether the court, if it agreed with this logic, would kill the entire law or simply remove the section from the warrant.
You don’t always get statements as blunt as this from Judge Brett Kavanaugh, Trump’s second person to the bench: “I tend to agree with you on this very simple case of severability under our precedents, which means we would remove the tenure and leave the rest of the law in place by reading our separability precedents, ”Kavanaugh told Don Verrilli, the attorney for the US House of Representatives headed by Democrats, who stands up for the law because the Trump administration won’t.
It would be the ball game.
“Even though there are five votes to quash an individual warrant without penalty, Kavanaugh made it clear that he believes the provision can be separated from the rest of the ACA (and we already know the Chief thinks that way) “Said Steve Vladeck. , CNN legal analyst and University of Texas law professor. “So there is no way to count up to five votes to reject the whole statute. “
Republicans may not have a leg to stand on
Before even getting to the question of whether the individual mandate is constitutional – or whether the law can be broken or must be done away with in its entirety – there is the question of whether we should even be here at this point.
A majority of judges could take a turnoff and determine that Texas and the other GOP-led states that launched the challenge do not have the right to sue in the first place.
Roberts began his questioning with the standing issue, followed by Judges Clarence Thomas and Kavanaugh.
“I guess in most places there is no penalty for wearing a face mask or mask during Covid, but there is a certain degree of stigma if you don’t. not wear in certain contexts, ”Thomas asked California Solicitor General Michael Mongan. “And if someone breaks that commandment, let’s say it’s in terms similar to the warrant here but no sanction, would they have the right to challenge the warrant to wear a mask?” ”
Roberts seemed worried about opening the floodgates to all kinds of unintended challenges.
“You’re letting someone who isn’t hurt by the provision they’re challenging sort of go through those thousand pages and pick which ones they want to attack,” the chief justice said.
Roberts is so over it
The Chief Justice is a Tory who cut the heart of the Voting Rights Act, voted to expand the reach of the Second Amendment, and strove to expand executive power. But his decision to support Obamacare in 2012 means he will never be fully adopted by Republicans.
On Tuesday, he appeared agitated that his court should take up the issue again. Two lower courts had said the individual warrant should go, but were mixed on whether it could be separated from the rest of the law.
Roberts does not tweet, but his tone would be characterized as a clear sub-soft from Republicans and Trump, a president who has repeatedly criticized the chief justice.
“I think it’s hard for you to argue that Congress wanted the entire law to fall if the term were canceled when the same Congress that lowered the sentence to zero didn’t even try to repeal the rest.” of the law, ”Roberts told the Texas Solicitor. General Kyle Hawkins.
“I think, frankly, they wanted the court to do this, but it’s not our job. “
Amy Coney Barrett in the spotlight
During her confirmation hearings last month, Senate Democrats denounced Amy Coney Barrett, saying Trump wanted to send her to court to help get Obamacare overturned.
She had written a scathing law journal article ignoring Roberts’ 2012 ruling, and had not expanded upon it in her hearings, citing an ongoing litigation.
Tuesday was the first time we heard from her on the bench about it – and she was skeptical of Texas’ ability to sue as well, but she also hinted at some of her thoughts on Roberts.
“The petitioners pointed out that if, in fact, Congress were to zero this and – and no longer make a tax of it, they argued that Congress would have deliberately done something unconstitutional by entrenching this language, if , in fact, he had strength, suppose, in his market power, ”Barrett said at one point.
The funny addition: “And I – I ask because, you know, there were five judges who thought that, but it wasn’t a majority opinion that said it. ”
Unfortunately, as the court is currently hearing argument over the phone, we were unable to see the Chief Justice’s reaction.
The plane didn’t crash, so what’s the problem?
When the law was enacted in 2010, the individual mandate was seen as essential in bringing healthy people into the individual market to offset the higher costs of sicker registrants. This was the “stick” that would get people to sign up, alongside the “carrots” of premium subsidies that would make coverage more affordable.
The penalty was set at the greater of $ 695 per adult and $ 347.50 per child or 2.5% of household income.
From the start, however, some health experts have questioned whether the penalty is high enough to force many consumers to purchase insurance. The effectiveness of the mandate remains a subject of debate.
A 2017 Congressional Budget Office report, frequently cited in oral argument, estimated that the number of people with health insurance would decline by 4 million in 2019 and 13 million in 2027. The individual market would remain stable in almost all parts. of the country in the coming decade.
CBO also predicted that only a small number of people who buy insurance because of the mandate, which was reduced to $ 0 as of 2019, would continue to do so only because they wanted to comply with the law.
However, enrollment in Obamacare plans has remained fairly stable. More than 11.4 million people signed up for Affordable Care Act trade coverage in 2019 and 2020, up from just under 11.8 million in 2018, the last year the mandate was in effect.
In his questioning, Judge Samuel Alito alluded to the fact that the individual market has held up despite Congress setting the penalty at $ 0.
“At the time of the first case, there was strong reason to believe that the individual retainer was like a part in an airplane that was essential to keep the airplane in flight, so that if that part was removed, the airplane was ‘crush,’ he asked Acting Solicitor General Jeffrey Wall.
“But now the part has been removed and the plane did not crash,” Alito added. “So if we were to decide this matter as you advocate, how would we explain why the individual warrant in its current form is essential to the functioning of the law?” “
Ariane of Vogue, Austen Bundy, Hannah Rabinowitz and Daniella Mora of CNN contributed to this report.