​​​​​​​Dems Seize On Words Of Roberts, Kavanaugh To Save ACA

By Jeff Overley
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Law360 (July 29, 2020, 11:19 PM EDT) -- In a U.S. Supreme Court clash over the Affordable Care Act's validity, Democratic lawmakers and attorneys general on Wednesday touted recent opinions from Chief Justice John Roberts and Justice Brett Kavanaugh, saying they clearly show why the ACA should survive a Republican-led assault.

In separate reply briefs, House Democrats and 21 attorneys general wielded the words of the two conservative justices to argue that the Supreme Court should uphold the vast majority of the ACA, even if it agrees with GOP challengers that one provision of the landmark law is unconstitutional.

In making that argument, the Democrats spotlighted opinions in which Justices Roberts and Kavanaugh found that individual statutory provisions were invalid but also "severable" from broader laws.

"Just weeks ago, this court issued two decisions clarifying its approach to severability and reaffirming that respect for Congress' legislative role compels the court 'to salvage rather than destroy the rest of the law passed by Congress' in all but the most 'unusual' cases," House Democrats wrote, partly quoting from Justice Kavanaugh's July 6 opinion in Barr v. American Association of Political Consultants .

"A statute will be found inseverable only in those rare instances in which it is 'evident' that Congress would have preferred no statute to the statute without the invalid provision," House Democrats added, partly quoting from Justice Roberts' June 29 opinion in Seila Law v. Consumer Financial Protection Bureau .

The reply brief from Democratic attorneys general representing 20 states and the District of Columbia seized on the same two opinions. It quoted Justice Kavanaugh's description of a "decisive preference for surgical severance rather than wholesale destruction," and it quoted Justice Roberts' concern about "major regulatory disruption" if a large legislative structure is toppled because of one defect.

The ACA case, filed by Republican attorneys general and backed by President Donald Trump, centers on the health care law's individual mandate to maintain health insurance or pay a tax penalty. The Supreme Court in 2012 upheld the mandate under congressional taxing powers, but the GOP challengers argue that the mandate became unconstitutional when Congress later eliminated the tax penalty. They contend that the mandate's importance means the whole ACA, or at least its protections for Americans with preexisting conditions, must also fall.

A Texas federal judge in 2018 agreed that the ACA, commonly known as Obamacare, should be struck down in full. The Fifth Circuit in 2019 deemed the mandate unconstitutional but told the judge to revisit the rest of his decision and better explain why any other parts of the ACA should be wiped out. Rather than wait for that process to play out, the Supreme Court in March agreed to hear the case.

The ACA covered about 20 million Americans via private insurance and Medicaid before the coronavirus pandemic and is now estimated to cover several million more who've lost their jobs during the crisis. Beyond its direct coverage, the law broadly prohibits higher premiums or denials of coverage based on preexisting conditions, and it has myriad components involving drug approvals, Medicare reimbursement, nutritional labeling and more.

Wednesday's briefs did not merely make passing references to the opinions from Justices Roberts and Kavanaugh. Instead, the filings discussed both opinions in their introductions and cited them repeatedly in ensuing pages.

Justice Roberts has twice rejected cases that posed existential threats to the ACA. Justice Kavanaugh has long advocated a delicate approach to severability, and as a D.C. Circuit judge in 2011, he wrote a dissenting opinion that arguably set the stage for the individual mandate to be upheld under taxing powers by the Supreme Court. The high court's four liberals are virtually certain to uphold the ACA, so Democrats likely just need support from one of the five conservatives.

The pandemic has been a flashpoint during briefing in the case, with Democrats stressing the ACA's importance to ensuring adequate care and Republicans calling the crisis legally irrelevant, and that discord continued Wednesday.

"There is never a good time to take people's health care away, but to do so in the middle of a pandemic, well, that's another level of heartlessness," California Attorney General Xavier Becerra, who is leading the Democratic AGs, told reporters Wednesday.

House Speaker Nancy Pelosi, D-Calif., also referenced COVID-19 in a Wednesday statement about the case, saying that "in the midst of the coronavirus pandemic ... the Affordable Care Act's life-saving protections are more important than ever."

The case is not among those set for argument in October. Unless it's scheduled for argument on Nov. 2 or 3, the oral advocacy will wait until after the presidential election.

Representatives of the Texas Attorney General's Office, which is leading the anti-ACA case, and the U.S. Department of Justice, which represents the Trump administration, had no immediate comment on Wednesday.

The petitioner states are represented by their respective attorneys general, led by the California Attorney General's Office.

The House is represented by Munger Tolles & Olson LLP, the Constitutional Accountability Center and the Office of General Counsel for the U.S. House of Representatives.

The respondent states are represented by their respective attorneys general, led by the Texas Attorney General's Office.

The respondent individuals are represented by the Texas Public Policy Foundation and Consovoy McCarthy PLLC.

The federal government is represented by the U.S. Department of Justice.

The cases are California et al. v. Texas et al., case number 19-840, and Texas et al. v. California et al., case number 19-1019, in the Supreme Court of the United States.

--Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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