At arguments, justices suspicious of GOP challenge to ObamaCare after Dems warned Barrett could overturn law

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Supreme Court to hear ObamaCare case Tuesday

Cato Institute’s Ilya Shapiro tells ‘Fox & Friends’ there is no chance ObamaCare will be destroyed, but the individual mandate could be struck down.

Several Supreme Court justices, including conservative Trump appointees, appeared suspicious Tuesday of arguments by the Trump administration and red states that the Affordable Care Act (ACA) should be overturned after Congress in 2017 removed the financial penalty associated with the individual mandate to purchase health insurance. 

During oral arguments on California v. Texas, the much-hyped case in which a group of states led by Texas is trying to overturn the law, also known as ObamaCare, Justices Brett Kavanaugh, John Roberts and even Samuel Alito assailed the Trump administration and red state lawyers on their arguments that the individual mandate cannot be excised from the rest of the law under the "severability" doctrine.

Meanwhile, Justices Clarence Thomas and Amy Coney Barrett seemed suspicious that the red states, whose lawsuit led to the politically charged hearing on Tuesday, even had the standing to bring their suit in the first place. 

President Donald Trump watches as Supreme Court Justice Clarence Thomas administers the Constitutional Oath to Amy Coney Barrett on the South Lawn of the White House in Washington, Monday, Oct. 26, 2020, after Barrett was confirmed by the Senate earlier in the evening. (AP Photo/Patrick Semansky)

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Justices' comments during oral arguments do not necessarily reveal how they will vote when the court eventually issues its rulings. Alito, for example, is generally expected vote to overturn the law despite his tough questioning of the Trump administration's lawyer. 

But Democrats' predictions of doom for the ACA if Barrett were confirmed to the Supreme Court appeared to have been misplaced after the oral arguments in which conservative justices put the screws to the lawyers challenging the constitutionality of the act. 

"Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision," and leave the rest in place, Kavanaugh said. "Don't you think in 2017, do you read Congress as having wanted to preserve protection for coverage for people with preexisting conditions, because it sure seems that way from the record and the text?"

FIn this Nov. 30, 2018, file photo Associate Justice Brett Kavanaugh sits with fellow Supreme Court justices for a group portrait at the Supreme Court Building in Washington. (AP Photo/J. Scott Applewhite, File)

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"I think it's hard for you to argue that Congress intended the entire act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act," Roberts said. "I think, frankly, that they wanted this court to do that, but that's not our job."

"The feature of this case that has a strange aspect is the sea change that's occurred in the understanding of the role of the individual mandate," Alito said while questioning Acting U.S. Solicitor General Jeffrey Wall. "At the time of the first case, there was strong reason to believe that the individual mandate was a part in an airplane that was essential to keep the plane flying... The part has taken out and the plane has not crashed... If we were to decide the case the way you advocate, how would we explain why the individual mandate in its current form is essential to the operation of the act? "

Outside of the question of severability, which was widely expected to take center stage in this case and was a significant part of Barrett's confirmation hearings, the court spent much of its Tuesday arguments addressing whether there was standing for the lawsuit in the first place. 

In this March 7, 2019, file photo, Supreme Court Justice Samuel Alito testifies before House Appropriations Committee on Capitol Hill in Washington. (AP Photo/Susan Walsh, File)

"The individual mandate now has no enforcement mechanism so it's really hard to determine what the threat of an action is against you," Thomas said to Texas Solicitor General Kyle Hawkins, who was representing the red states. 

Said Barrett: "Let's say we agree with you that the mandate, by making them feel legal compulsion to purchase insurance, has caused them pocketbook injury. Why is that traceable to the defendants that the individuals have actually sued here?"

No matter where Barrett and Thomas end up falling on the standing issue, or if Alito surprises and votes that the individual mandate is severable from the rest of the ACA, there appear to be at least enough votes with Roberts and Kavanaugh siding with the court's liberals on severability to preserve the ACA. 

Over the summer Kavanaugh wrote an opinion on robocall restrictions – which was joined by Alito – that said the Supreme Court “presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute.”

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Barrett herself in her confirmation hearings said of severability: "So if you picture severability being like a Jenga game, it's kind of if you pull one out ... will it all stand or if you pull two out will it still stand?... Severability strives to look at a statute as a whole and say, 'Would Congress have considered this provision so vital that kind of in the Jenga game, pulling it out, Congress wouldn't want the statute anymore?'"

The arguments Thursday follow Barrett's tough confirmation fight, which ended a mere two weeks ago, as Republicans aimed to seat the justice before the presidential election and Democrats warned she could cause the ACA's death knell. 

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"A vote by any senator for Judge Barrett is a vote to rip away health care from millions of Americans," Senate Minority Leader Chuck Schumer, D-N.Y., said repeatedly through Barrett's confirmation process. 

But Republicans touted Barrett's commitment to "faithfully apply the law to the facts without personal agenda," in the words of Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., and her "well qualified" rating from the American Bar Association. 

A ruling in the case is expected by summer 2021, the end of the Supreme Court's current term, but could come sooner as the case is being argued early in the term, which only started last month. It could also be short-circuited by legislative action potentially amending the ACA under President-elect Biden's administration. 

The Tuesday arguments also featured some technical difficulties, in which Justice Stephen Breyer, who telegraphed clearly he will likely rule in favor of the ACA, was skipped at one point due to his phone apparently not working, and Roberts moved on to Alito. Breyer's phone was fixed shortly thereafter, but he declined to ask further questions and blamed his "machine" for not working. 

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There were also a handful of colorful hypotheticals. Roberts compared the ACA's individual mandate to a theoretical law requiring that Americans mow their grass but does have an enforcement mechanism, signaling that on the merits of the case he might think the individual mandate to be unconstitutional, even if it is severable from the rest of the law. 

Thomas compared the mandate to mask mandates during the pandemic. And Kavanaugh asked about whether people would be able to sue if Congress passed a law requiring them to fly flags on their houses, but did not impose a penalty on those who failed to do so.

"It's a forced acquisition of an unwanted good or service. Why isn't that enough to give you standing, knowing that some people are going to do that – buy the flags and fly them – simply because Congress requires that?" Kavanaugh said while questioning California Solicitor General Michael Mongan. 

Fox News' Megan Henney contributed to this report.