President-elect Biden defends ACA; high court arguments indicate 'Obamacare' is likely to survive

President-elect Joe Biden is championing the Obama administration's signature health law as it goes before the Supreme Court in a case that could overturn it.


President-elect Joe Biden is championing the Obama administration's signature health law as it goes before the Supreme Court in a case that could overturn it.

He delivered a speech on the Affordable Care Act on Tuesday, the same day the high court heard arguments on its merits. It ruled eight years ago to leave the essential components of the law known as Obamacare intact, but is now controlled 6-3 by a conservative majority after President Donald Trump's appointment of Justice Amy Coney Barrett.

Speaking after the arguments, Biden called the Republican-backed challenge to the law “cruel and needlessly divisive” and vowed to enact reforms to expand coverage when he’s in office next January, regardless of the outcome of the Supreme Court case.

The speech reflects the importance Biden is putting on health care as he prepares to take office in January amid the worst pandemic in more than a century. He's launching his transition process this week as the virus surges across the country. The U.S. surpassed 10 million cases Monday.

If the court ultimately agrees with the GOP, millions of Americans could lose their health care coverage. While Tuesday's arguments indicate the court is unlikely to strike down the entire law, the prospect adds to the pressure on Biden to execute complicated plans to confront a series of crisis he will inherit in just 71 days. The nation's economy is struggling as the pandemic surges and cultural divisions deepen.

Biden also said during the speech that nothing is going to stop his administration’s moving forward despite Trump’s refusal to concede the race.

Biden also focused on health care Monday as he pleaded with Americans to put aside their political differences and wear masks to protect themselves and their neighbors from the virus.

“We could save tens of thousands of lives if everyone would just wear a mask for the next few months. Not Democratic or Republican lives, American lives,” Biden said. “Please, I implore you, wear a mask.”

The suit challenging the health care law was brought in America's largest conservative state, Texas, and is backed by Trump and top Republicans. It asks the Supreme Court to declare the law’s mandate to buy health insurance unconstitutional because Congress had previously repealed the penalties for noncompliance.

After serving as President Barack Obama's vice president for eight years, Biden has pledged to build on the Affordable Care Act while championing a “public option” that would allow more people to opt into government-sponsored health insurance even as millions of others could stick with their current, usually employer-based coverage.

But such changes could be difficult to enact if Democrats fail to win a majority in the Senate. Control of the chamber hinges on two runoff races in Georgia that will be decided in January.

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A more conservative Supreme Court appears unwilling to do what Republicans have long desired: kill off the Affordable Care Act, including its key protections for pre-existing health conditions and subsidized insurance premiums that affect tens of millions of Americans.

Meeting remotely a week after the election and in the midst of a pandemic that has closed their majestic courtroom, the justices on Tuesday took on the latest Republican challenge to the Obama-era health care law, with three appointees of Trump, an avowed foe of the law, among them.

But at least one of those Trump appointees, Justice Brett Kavanaugh, seemed likely to vote to leave the bulk of the law intact, even if he were to find the law’s now-toothless mandate that everyone obtain health insurance to be unconstitutional.

"It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” Kavanaugh said.

Chief Justice John Roberts, who wrote two earlier opinions preserving the law, stated similar views, and the court's three liberal justices are almost certain to vote to uphold the law in its entirety. That presumably would form a majority by joining a decision to cut away only the mandate, which now has no financial penalty attached to it. Congress zeroed out the penalty in 2017, but left the rest of the law untouched.

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

In the court's third major case over the 10-year-old law, popularly known as “Obamacare,” Republican attorneys general in 18 states and the administration want the entire law to be struck down. That would threaten coverage for more than 23 million people, as well as millions of others with preexisting conditions that now would include COVID-19.

Tuesday's arguments, conducted by telephone and lasting two hours, reached back to the earlier cases and also included reminders of the coronavirus pandemic. The justices asked about other mandates, only hypothetical, that might have no penalties attached: To fly a flag, to mow the lawn or even, in a nod to current times, to wear a mask.

“I assume that in most places there is no penalty for wearing a face mask or a mask during COVID, but there is some degree of opprobrium if one does not wear it in certain settings,” Justice Clarence Thomas said.

The court also spent a fair amount of time debating whether the GOP-led states and several individuals who initially filed lawsuits had the right to go into court.

The suits are against the federal government and U.S. agencies, “but doesn’t it really seem that Congress is the one who’s injured the individual plaintiffs here and you can’t sue Congress and say: ‘Hey, you’ve put us under this mandate that’s forcing us to buy insurance and that’s harming us,’ right?” Barrett said to Texas Solicitor General Kyle Hawkins.

A ruling that those parties do not have that right, known as legal standing, would result in the dismissal of the case and leave the entire law in place, including the mandate.

Questions from Barrett, who joined the court late last month following her hurried nomination and confirmation to replace the late Justice Ruth Bader Ginsburg, did not point to a clear outcome. Trump's other high-court appointee is Justice Neil Gorsuch.

The three Trump appointees have never ruled on the substance of the health care law. Barrett, though, has been critical of the court’s earlier major health care decisions sustaining the law, both written by Roberts.

The current case stems from a change made by the Republican-controlled Congress in 2017 that reduced the penalty for not obtaining health insurance to zero. Without the penalty, the law's mandate to have health insurance is unconstitutional, the GOP-led states argue.

If the mandate goes, they say, the rest of the law should go with it because the mandate was central to the law's passage.

However, enrollment in the law’s insurance markets has stayed relatively stable at more than 11 million people, even after the effective date of the penalty’s elimination in 2019. According to the nonpartisan Kaiser Family Foundation, enrollment dropped by about 300,000 people from 2018 to 2019. Kaiser estimates 11.4 million people have coverage this year.

An additional 12 million people have coverage through the law’s Medicaid expansion.

If the case turns on the legal doctrine of severability, it would be in line with other rulings in recent years in which the justices have excised a problematic provision from a law and allowed the rest to remain in force.

In the first big ACA case in 2012, Justices Samuel Alito and Thomas voted to strike down the entire law. Roberts and Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor voted to uphold it.

A decision is expected by late spring.