In ObamaCare Hearings, Roberts and Kavanaugh Suggest Mandate Will Go, Rest of Law Will Stay

This has been the outcome most people expected in the run-up to this case, but things really crystalize when two sitting Justices – whose votes will be crucial on the matter – say as much during oral arguments.

That’s exactly what Chief Justice John Roberts and Justice Brett Kavanaugh did today:

“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate was struck down,” Roberts told (Texas Solicitor General Troy) Hawkins. Roberts was appointed by President George W. Bush.

Roberts acknowledged that some Republican lawmakers may have wanted the Supreme Court to strike down the law, “but that’s not our job.”

Kavanaugh told Donald Verrilli, who was solicitor general under former President Barack Obama, that “I tend to agree with you that this is a very straightforward case” and that under the court’s precedents “we would excise the mandate and leave the rest of the act in place.”

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I have argued on these pages for several years that the Supreme Court should strike down the entire law based on the idea that the mandate isn’t severable from the rest of it. At the time ObamaCare was passed, Democrats argued the mandate was crucial because you couldn’t provide insurance to people with pre-existing conditions unless you also had a massive group of healthy people in the risk pool. And the only way to get that, they said at the time, was to mandate everyone buy health insurance.

The Democrat argument about the essential nature of the mandate changed once the mandate was hollowed out in the 2017 tax reform. Suddenly it wasn’t essential after all, and the law would be just fine without it.

It’s now been three years since Congress zeroed out the penalty for not buying health insurance, and the law is still standing. That’s not to say it’s working well. It’s not. It’s costing taxpayers nearly $700 billion a year in subsidies to cover those who can’t afford their premiums. A law isn’t working well when it requires constant and massive federal subsidies to the system it created.

But Roberts makes a decent point when he says it’s not the job of the Supreme Court to correct the mistakes of the political branches. He said the same thing when he joined the Court’s then-four liberals to save the law in 2012, and he’s saying it now too.

Roberts and Kavanaugh appear to agree with the other four conservatives that the mandate is unconstitutional and needs to go. What we’ll be left with is an even more unworkable law. But if the law doesn’t work, then it’s the job of Congress to get rid of it and/or replace it with a better one.

That is very unlikely to happen under a Biden Administration, especially with a Democrat-controlled House of Representatives. But again, just because Congress should do something and won’t doesn’t mean it’s the Supreme Court’s job to step in and do it for them.

Republicans had the opportunity to repeal ObamaCare in 2017, and a handful of Republican senators – led by the awful John McCain – scuttled the effort. They should have done it then, because the political alignment that would make another try possible seems unlikely any time soon.

By the way, when the Supremes leave ObamaCare in place, will we recognize how dishonest it was for Democrats to claim that confirming Amy Coney Barrett would mean millions would lose their health care? That was never going to happen. In fact, even if ObamaCare was thrown out, it wouldn’t happen.

The brutal truth, though, is that we’re stuck with ObamaCare until the voters decide to elect a Congress that will get rid of it. And that will probably take a very long time.