The U.S. Supreme Court heard arguments yesterday in the latest challenge to the Affordable Care Act and someone who sat through the proceedings says the pivotal issue of standing was discussed.
Attorneys general from Texas and other states are challenging the constitutionality of Obamacare, arguing the Tax Cuts and Jobs Act zeroed out the tax penalty in the health care law for anyone who did not purchase compliant coverage.
It was that same penalty that Supreme Court justices pointed to as a reason they upheld the controversial law.
Elizabeth Slattery of Pacific Legal Foundation says a lot of the justices, including new Justice Amy Coney Barrett, questioned the states’ standing in the case and therefore the legal right to challenge the law.
Another issue involves severability.
"I think a lot of people going into the argument expected this would be where a lot of the action was at," says Slattery. "Because I think Chief Justice Roberts and Justice [Brett] Kavanaugh expressed an interest in trying to sever the individual mandate from the rest of the statute, which I think a lot of people predicted that's where they might be."
Various news outlets picked up on that issue, too: Fox News reported the justices were "suspicious of GOP challenge to Obamacare."
New York Post reported that Justices Roberts and Kavanaugh signaled "hesitance to strike down Obamacare."
"It is a risky business to guess and make predictions about how the Supreme Court is going to rule, particularly based on oral arguments," warns Slattery. "After the oral arguments in the first Obamacare case, NFIB v Sebelius, it did seem like that challengers were likely to win, and they did win to a certain extent on the commerce clause issue."