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 i
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