DAVID GREENE, HOST:
The Affordable Care Act, known as Obamacare, is back before the Supreme Court today. Opponents are challenging it for a third time. The first two attempts to derail the law failed narrowly by votes of 5-4 and 6-3. But this time, the makeup of the court is so different. There are three justices appointed by President Trump. Among them is new Justice Amy Coney Barrett. NPR legal affairs correspondent Nina Totenberg has more.
NINA TOTENBERG, BYLINE: Prior to her nomination, Barrett consistently criticized the court's two previous decisions, a critique that Senate Democrats repeatedly bludgeoned her with at her confirmation hearing. But the ACA has remained in place now for a decade, and that has changed the legal landscape so much that even Paul Clement, who argued the first case against the ACA, sees this challenge as a stretch.
PAUL CLEMENT: It's just hard for me to say that even though I said it to the court back in the day, that, you know, the mandate was central - and I think that was a pretty good argument back in the day - it's a little harder to say the mandate is central when it doesn't have any teeth.
TOTENBERG: The most controversial part of the ACA when it was enacted in 2010 was the requirement that people buy health insurance or pay a penalty. In 2012, Chief Justice John Roberts and the court's other conservative justices ruled that the mandate exceeded Congress' power to regulate interstate commerce. But Roberts provided the fifth vote to uphold the penalty anyway, on the grounds that it amounted to a tax and thus fell within the taxing power of Congress. Now comes a new challenge brought by Texas and other GOP-dominated states joined by the Trump administration. They assert that because the penalty has been zeroed out, it is no longer a tax and thus the mandate is unconstitutional. What's more, they argue, the mandate was so interwoven with the rest of the law that Obamacare must be struck down in its entirety. Because the Trump administration is refusing to defend the law, the House of Representatives has stepped in to defend it, along with 20 mainly Democratic states. Arguing on behalf of the House will be Donald Verrilli, who successfully defended the law when he served as solicitor general in the Obama administration.
DONALD VERRILLI: Their argument has got a funhouse mirror quality to it. What President Trump actually said and what the congressional leadership said and virtually everybody said when they enacted this amendment in 2017 was that they were repealing the mandate. Now they're saying what Congress actually did by zeroing out the tax was create a command that everybody go out and buy insurance, which is, of course, exactly the opposite of what Congress did.
TOTENBERG: The Texas solicitor general was unavailable for an interview for this broadcast, and almost all of the groups that challenged the ACA in prior cases have not joined this challenge. So we turned to Chapman University law professor John Eastman, who filed a brief siding with Texas and the Trump administration. Eastman argues that when Congress zeroed out the penalty...
JOHN EASTMAN: That sole hook for making it constitutional no longer exists. And just because there's no longer a penalty doesn't mean there's not still a mandate.
TOTENBERG: Indeed, there is a mandate still on the books, he argues. But ultimately, the question in this case is whether the mandate language can be struck from the law by itself or whether it's so intertwined with the rest of the law that the whole ACA must be struck down. Just about all the actors in the health industry have weighed in urging the Supreme Court to preserve the law, from the American Medical Association to hospitals across the country to the insurance industry. Again, Don Verrilli.
VERRILLI: The easy, obvious answer is to sever the rest of the law and let it continue to operate just as Congress intended in 2017.
TOTENBERG: Lawyer Verrilli, representing the House, says it's Congress' job to make policy, and it's repeatedly refused to repeal the law, including in 2017, when it zeroed out the penalty. He maintains that the Trump administration is asking the Supreme Court to take an extreme and radical position.
VERRILLI: They're asking to strike down the entire Affordable Care Act to basically throw the health care sector into chaos.
TOTENBERG: In fact, there would be enormous practical consequences were the court to throw out the law in its entirety. Health care accounts for 20% of the U.S. economy, and the ACA currently provides health insurance for some 20 million people. It protects all Americans from discrimination based on preexisting conditions, from cancer to COVID to asthma and diabetes and much more. That's why attempts to repeal the law in Congress have repeatedly failed. Now the future of the law is up to the Supreme Court. Nina Totenberg, NPR News, Washington.
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