'The ACA is safe': Justice Kavanaugh shocks legal experts by suggesting he will save Obamacare

[srose58089]

Source: Raw Story

Supreme Court Justice Brett Kavanaugh on Tuesday suggested that he could be the deciding vote in favor of saving former President Barack Obama’s signature health care law.

During oral arguments about the Affordable Care Act’s individual mandate, Kavanaugh hinted that the provision could be struck down without invalidating the entire law.

“I tend to agree with you that this is a very straightforward case for severability under our precedents meaning that we would excise the mandate and leave the rest of the act in place,” Kavanaugh said.

“That strikes me as the ballgame,” Supreme Court expert Ian Millhiser noted on Twitter.

Read more: https://www.rawstory.com/2020/11/the-aca-is-safe-justice-kavanaugh-shocks-legal-experts-by-suggesting-he-will-save-obamacare/

---

I know legal experts, which I am not, have been trying to discern how a particular justice will rule based on there comments and questions during oral argument. I do not know how this case will ultimately be decided but I will be optimistic as I and my wife are part of the 20 million who would lose coverage.

[greenjar_01]

1. The mandate is what makes it work

People acting like Obama put the mandate in there just for kicks and control or something.

[The Mouth]

7. Maybe so, but the mandate is what hurts people

and is responsible for most of the resistance to it.

there's got to be a better way

[greenjar_01]

9. Maybe so

The gas tank is what hurts people in a car, too, to the extent that they have to keep paying for gas.

Vroom-vroom.

[The Mouth]

86. Again, you state someting as if it were a fact

You say the Mandate is what makes it work.

Prove it.

We don't need this sop to the insurance companies. Hey, Kaiser, Blue Shield, Blue Cross- just like a restaurant- you have to serve anyone who applies, and at the same price, end of subject.

[apnu]

17. There is a better way. Dump the insurance system and enact universal care like every everybody else.

I hope Joe goes for that right out of the gate.

[qazplm135]

19. Public option

Lieberman is responsible for where we are today.

[SharonAnn]

28. Exactly. To please the GOP which voted against it anyway.

[regnaD kciN]

83. He wasn't the only one...

There were a bunch of conservadems in reddish states who threatened to join the Repug filibuster if the public option wasn't killed.

They got their way...and all lost in 2010 anyway.

Unfortunately, most of them were replaced by even-more-conservative Republicans for whom the ACA, even without a public option, is the most hoooooooooorible case of government oppression imaginable.

[Auggie]

45. The mandate IS TOO EXPENSIVE if you don't qualify for the subsidy

[Mr.Bill]

49. What hurts everybody

is people not having any health insurance at all.

[LiberalFighter]

60. Social Security and Medicare are mandates.

Yet not everyone will benefit from it.

[Demsrule86]

63. Any health system requires everyone participate.

[Dyedinthewoolliberal]

73. how does it hurt people?

[usaf-vet]

75. The people that keep saying they want to KEEP their private insurance. HOW many of those policies..

..... are part of a job package. How many of those GOOD JOBS with great benefits will come back?

How many of the "new" jobs that tRump brag about have that great insurance package?

How many of the $15.00 minimum wage earners will be able to afford those gold insurance benefits?

How many of those former owners of the gold packages will be glad to GET ACA when their insurance goes south with their jobs?

One final topic this is the same SCOTUS that seems willing to take away a women's right to choose and MANDATE zero abortions.

And if the government stop mandating federal taxes and selective service enrollment when you turn 18.

And I doubt it's the mandate of the ACA that drives the push to kill it. It's just the EXCUSE because it affects health insurance companies' bottom line that is driving the push.

[Bernardo de La Paz]

78. Better way? Taxes? Cons won't like that. . . . nt

[Boogiemack]

85. So how much was the mandate? I bet most folks don't even know. nt

[Sucha NastyWoman]

8. That's what I thought.

The trade-off for insurance companies covering pre-existing conditions was that they were going to get all these new customers, due to the mandate bringing more people into the market.

Hasn’t the mandate already been repealed? Then how can insurance companies still afford to cover pre-existing conditions? Is that why premiums have risen so much that some people have dropped out?

If this is the case, why is it not explained to the public, how the republicans have damaged the ACA by getting rid of the mandate, thus running premiums up? Doesn’t seem like that difficult s concept to me, that most people would understand what is going on.

[not_the_one]

24. It seems like we democrats can't be bothered to explain wahat is very explainable.

We need to send our prime communicator, Pete, on a tour to explain WHY we believe what we do.

There is yet to be a topic that he can't master. He can do it without confusing people, or making them feel like they are being talked down to.

[Mr.Bill]

50. The rebublicans already explained it.

Evil black man wants to take all of your rights and money.

[OneGrassRoot]

64. That's a great idea...

Pete does get across to people in a way many others don't.

[mopinko]

42. yeah it has.

1st scotus case, iirc.

[mathematic]

14. Kinda but not really

I was definitely a person that thought the mandate was important to make it work. I think having more people covered and getting necessary healthcare lowers medical spending in the long term (or otherwise comes out ahead on a strictly cost/benefit analysis).

Financially, the mandate was supposed to help even out the costs of insurance companies that could no longer impose restrictions on pre-existing conditions, or have lifetime or annual limits, etc. Without the mandate, insurance premiums could skyrocket. The result is mostly an increase in government spending on subsidies, though there would be more people unable to afford to buy insurance as well. Not great outcomes, for sure, but neither of those makes the ACA useless or non-functional. In particular the medicaid expansion would still be in effect as well as the prohibition of the very worst of the BS "gotchas" of the old health insurance. The government cost issue in practice doesn't matter since the government just spends money on things even if there aren't tax dollars collected to back it up (this is a good thing).

[karynnj]

18. In 2007/2008. Obama was against the mandate

It was only after Ceos of major companies pushed for thr inclusion of the mandate that that was included. In 2007, Kennedy had said that having a mandate would not get the votes and an alternative way to deal with people wanting to sign up only when they needed it. At the time - in at least one debate, Obama spoke of a steep penalty being imposed on people wanting to join outside the normal sign up periods.

(Note that the Medicare drug plan has this. Once you go on Medicare you must be on either part D drug plan or a comparable one. There is no mandate, but if you don't sign up when you should. you must pay a pretty big penalty later. (Here, many people could far more easily than with health insurance opt to self insure for the coming year. People who have low drug costs take the cheapest Part D plan rather than be in the category where they will pay a large penalty if and when they need more drugs.

[Polybius]

30. The mandate hurt me when I first applied

I was making $30,000 a year and they wanted $300 a month for basic coverage. Yeah right, not happening. It should be free for me. So I just paid the fine, it was cheaper.

[greenjar_01]

37. I'm sure that actually did happen to some people

[ForgoTheConsequence]

66. It happened to me, too.

I made under 35K a year and the cheapest plan I qualified for was 350 a month and didn't cover anything.

[AlexSFCA]

44. not anymore

Just this morning I was listening to experts on NPR, individual mandate was only important in the beginning, 10 years later, the law works w/o the mandate. People who won’t buy insurance tend to not have money to pay the penalty either. There are many other ways to mandate, e.g. colleges can require students to have health insurance.

[quaker bill]

87. it has had no penalty for years

It is not functionally not a mandate as there is no penalty for not doing it. The law continues to work just fine.

[Aristus]

2. He wants to be remembered for something other than bursting into tears

during his confirmation. He’s going to be working with the former Senator who made him cry. So I guess that’s a step in the right direction.

[lagomorph777]

62. None of Trump's nominees can be fired; some may actually care about their legacies.

I can dream.

[StClone]

74. Con Supremos are Playing Along for Now

Have you noticed how rulings at several levels suddenly are going "our way?"

I fear it isn't a coincidence. They want to play nice now. Because, I see doing otherwise with a Dem House, Dem President and possible Dem Senate would be bad timing. They want to pull back so as not to trigger a court expansion. They see a long game and as soon as the coast is clear they will once again pursue their donors vanities.

[FBaggins]

79. Even if that had been true... they aren't afraid of it now

Democrats aren't in a position to threaten a "packed" court. We aren't particularly likely to win both GA seats, but even if we did there isn't enough support to end the filibuster. That was a possibility if we picked up the 5-9 seats that some predicted, but it no longer in the cards.

[StClone]

82. If we win one we will likely win both Georgia Senate seats.

Or, lose both.

Still the R's can restrain themselves when needed, like when public awareness is high. And it is high now with Trump's antics and the possible loss of ACA. The Republican had a chance to eliminate the ACA in the past but pushed it back to the have the friendly court make a nullification. They will chip away at it if nothing else. Mean while surprise! Kavanaugh issues positive statements to save ACA and "it was not the job of SCOTUS" to take the protection out. How is that possible with Kavanaugh's expectations.

[FBaggins]

84. I'm not optimistic, but it doesn't matter as far as SCOTUS pressure is concerned

We didn't win a single "tossup" race in Congress and even lost several that were "lean Democrat". GA will have the eyes of the nation on it... but turnout is still not likely to be as high as last week was. Without Trump on the ballot to oppose, it's going to be tough.

But even winning both would just make things 50/50 with Harris breaking the tie... but there wouldn't be unanimity in the caucus to kill the filibuster (and thus, the court stays as it is). It would help us get judges confirmed and keep Republicans from running investigations out of the Senate... which is HUGE... but it wouldn't threaten the court.

In fact, it's just the opposite. Democrats are starting to make it seem as though they won't take on the courts... in an attempt to help in GA (see Manchin's latest).

[GeorgeGist]

3. How about we excise the mandate ...

that you have to be a citizen to vote?

[niyad]

13. ?????

[Rebl2]

26. What?

[Polybius]

31. I think that's already a law

I don't believe non-citizens can vote.

[LeftInTX]

35. Sorry, I don't want Russians voting in our elections!

[samsingh]

4. this doesn't tell us anything yet.

[LeftInTX]

36. Agree. Talk is cheap!

[Zambero]

5. Have observed that a number of Kavanaugh and/or Gorsuch votes have parted company

with the more monolithic Alito-Thomas hard right bloc. Presumably Barrett will be aligning with the latter.

[Backseat Driver]

6. So funny - seems he learned he'd been assigned

to clean out the barn of those product-specific, very large and fine, beer-wagon horses. Like his big SCROTUS leader, CJ, tweeted "not my responsibility."

[LiberalArkie]

10. Right now the people without the insurance go to the emergency room and get treated.

The get a bill and never pay it. This is putting the hospitals out of business. Since there isn't a real reason anymore to not have affordable insurance, the hospitals need to be allowed to not treat those without insurance.

[progree]

16. Their "treatment" is enough to get them stabilized and then booted out the door

with a fistfull of prescriptions they can't afford to fill, and recommendations to specialists they can't afford to see.

It's RW propaganda that the poor have emergency rooms to go to, so no problem.

"Since there isn't a real reason anymore to not have affordable insurance,"

Huh? Everyone has affordable insurance available to them? In a country where something like 40% of people don't have $400 to meet an emergency expense?

You live in a vastly different America than I do.

[LeftInTX]

38. This has been going on since the 90's

We have alot of undocumented people in Texas. No insurance.

And yes, most of this is emergency room treatment.
However, I disagree with the other response: Childbirth, major trauma, life and death situations are admitted.

I think the actual cost of health care itself is a factor.

[progree]

67. "Childbirth, major trauma, life and death situations are admitted." - I didn't say they weren't

"I disagree with the other response: Childbirth, major trauma, life and death situations are admitted."

You're not disagreeing with me. Like I said, I didn't say they weren't. It's the follow-up care that is lacking, and forget about treatment for chronic conditions or cancer chemotherapy or anything like that.

I don't know how many articles I've read about people keep coming back and coming back over and over to emergency rooms to get "care" for some condition, and the ER doctors remarking that it would be a lot cheaper just to have surgery or whatever treatment to fix the underlying problem, but that's not allowed.

[LeftInTX]

69. Got it! Agree

The ER thing really sucks...

[House of Roberts]

11. The point of overturning the ACA,

isn't about health care. It's about repealing the taxes in the law on the wealthy.

Every time I lose employer based coverage, I find I can neither afford COBRA or the ACA coverage, because the subsidy is always based on my income from when I was working, instead of on unemployment insurance.

[Merlot]

22. The subsidy is based on self reported income

You can also call and change reported income at any time in the year to adjust the amount of subsidy. The true amount of subsidy is determined by tax returns. You could end up owing more subsidy or getting a refund.

I don't know what state you're in or who you're talking to (insurance broker vs government web site) but the ACA should be basing your subsidy on your average income.

And yes, everyone's missing the point that for republicans, overturning the ACA is about giving yet another tax break to the wealthy. Causing discomfort, heartache and death to people is just an added benefit.

[Ms. Toad]

40. COBRA will nearly always be priced out of your reach -

But whenever you lose employer insurance (even if COBRA is available), your ACA subsidy is based on your current income - not your prior income or even your average income for the year. Eligibility for ACA subsidies is a month-by-month decision.

[progree]

68. Wow, I didn't know that. For years on the ACA, they asked for an estimate of my annual

income. And then at tax time, I don't remember filling it out month by month as to what my income was each month.

In my case the vast majority of my annual "income" was in December -- half a years' worth of dividends and capital gains, plus all my Roth conversions and IRA RMD withdrawals (all considered as part of one's AGI -- the AGI is what the subsidy is based on). The other eleven months of the year I would have been in dire poverty income-wise.

I'm not saying you're wrong, I'd have to dig into that. Though its probably too late for me to amend any returns from the ACA years.

Edited to add - I had a very veteran tax preparer who well understood and knew how most of my "income" was in the last month and routinely filled out Form 2210 (Underpayment of Estimated Tax) to enumerate my income by quarter so I wouldn't get penalized for paying most of my estimated taxes in the 4th quarter.

But he was no "ace" on the ACA. I remember him saying he only had one or two other clients on it, and me schooling him on some tax aspects of it, so well, I can't use him as my "appeal to authority" argument.

[Ms. Toad]

76. You should get a statement from whoever provides your insurance

about which months you were covered.

We'll find out in April how it works as a practical matter - my daughter lost her job due to bankruptcy in February, was on the ACA plan from March - July. She became eligible in July for an employer plan, so she had overlapping plans for the month of July (to try to avoid a new out-of pocket by treating her employer as primary for July - with the ACA plan picking up the out of pocket).

So she was eligible for subsidies March - June, then had to re-apply without a subsidy for August, with a doubling of her premium and a 400% increase in her out of pocket (within the same year).

That was a nightmare.

So we'll see how the taxes go, as a practical matter.

It is extremely hard to get good information on the practical details of the ACA. Everyone (including Sherrod Brown's office) told us the out of pocket was fixed at the time the plan was bought - and that no subsidies were involved. I knew they were wrong, but since they disagreed with the basic premise, I couldn't get anyone to answer the next question - which was - will we have to start over with the full $8,000 out of pocket? Will we be treated as having met the $2,000 out of pocket by virtue of having had $20,000 in expenses that would have met the $8,000 unsubsidized amount? or will we have to top off the $2,000 with another $6,000?

The answer - in case anyone cares - is that (as a practical matter) it is the first option or the third - at the whim of the insurance company. They can start the year over again ($8,000) or give you credit for what you have already met and require you to pay the rest. Even if the government theoretically has already paid the rest on your behalf.

[progree]

81. Thanks for the great info. The ACA is so complex

My last ACA year was 2016, so it looks like I'm past the 3 year tax-amending deadline. And 2016 was a year when I was 195% of poverty, so i got a big subsidy as it is. Unlike 2014 and 2015 where my income was quite a lot larger and my ACA subsidy was nil or nearly nil as I recall.

I'm on Medicare now (ever since December 2016), and I'm so glad that, complex as it is, it is well-plowed ground and there actually are good impartial and well-funded (relatively) resources to help with Medicare like the SHIP program (State Health Insurance Program) where I attended a seminar and got some individualized counseling and they have all kinds of publications.

If I recall, Caligula has had big cuts to the SHIP program in his annual budgets, but I don't think any of that actually ever got enacted. He did cut ACA navigator and such resources though, I'm pretty sure.

[Hoyt]

12. For all practical purposes the Mandate ended in 2017. The ACA will remain intact after SC rules,

except for the Mandate.

[2naSalit]

34. +1

[Ms. Toad]

41. The premise of the litigation is that it is unconstitutional without a mandate -

and they got an appellate court to agree wtih that argument.

So it is not a given that the ACA will remain intact after the SC rules.

[Hoyt]

46. I get that, and the SC is going to say it is not UnConstitutional. But if everyone wants to worry,

dream up the worst case outcome, etc., that's fine. The ACA will be here, pre-existing conditions will not used to deny coverage, you can purchase it on line either through a state exchange like in California, or the Federal Exchange in other states.

Now, as to the cost to individuals, just like now that will still be an issue until subsidies are increased.

The ACA has survived many lawsuits, Congressional challenges, and Agency challenges, and it's still here.

If anyone want to bet money on that, I'm taking bets.

[Ms. Toad]

48. Glad you have a crystal ball.

With a daughter with $200,000/year in billed health care expenses - I can' t afford to live in fantasy land.

While I agree that is what the court should, the same is true of the Court of Appeals, which obviously was not privvy to your crystal ball.

[Hoyt]

51. You seem to have a crystal ball too. All the Appeals Court did was strike down the Mandate, nothing

else. Legislation had already made it unenforceable.

I'm sure it's difficult not to be concerned with your daughter. I get that.

[Ms. Toad]

54. Her access to health care has been under constant attack,

since the day the legislation was signed. From congress and from the courts.

You are making a very specific prediction - that it will survive. I don't have a crystal ball - which is why I am saying that it is impossible to know whether it will be struck down or not. No one, with the kind of health care needs we have, can afford to be complacent about the Supreme court doing the right thing.

[Hoyt]

56. I know it has been under attack, and it has survived everyone of them. Never asked you to

be complacent, I get it.

But, the ACA will survive this attack, just like all the others. And, it will probably end the attacks.

[Ms. Toad]

58. It's a bit hard to take, "The ACA will remain intact after SC rules"

as anything other than a suggestion there's nothing to worry about - when, frankly, there is.

As for probably ending the attack - I keep thinking that with every attack that is resolved. So far, the attacks haven't ended.

[BigmanPigman]

77. Man, I hope you're right.

This ongoing stress over the ACA's legitimacy year after year is adding to my poor health. I live with this fear constantly...no fun!!!!!!!

[Ford_Prefect]

15. IMO when conservatives like him say such things in public it all too often means the opposite.

[IronLionZion]

20. Biden wants the public option

it would be interesting to see if that happens. GOP will oppose it but it is an option not a mandate so might be more palatable to some.

[Sapient Donkey]

57. I like the idea of a public option in which everyone gets a health credit that pays for it in full

People who don't use the public option can apply that credit toward their private insurance, and they just pay the difference if costs more than their credit. If the private health insurance becomes too greedy then people have the public option. Since everyone benefits from this in very tangible ways that are immediately evident, that makes it more resilient. Take the preexisting conditions coverage as an example. I think that is one of the biggest shields that made it difficult for the republicans to totally trash the ACA. This also gets rid of the complaints of people saying that it removes their choice. If anything it gives them more choices.

The main issue I see with this is the cost, but that's not much different than if it was a traditional single payer system, and in the long run it probably turns out to be cheaper based on my understanding. The other issue is that the private insurance companies will take the healthy folks and reject the unhealthy so the public option is the only choice for the sick. That could be mitigated by keeping the same regulations we have with the ACA if they want to be able to get funds from the healthcare subsidies. Also, in a traditional single payer system, we'd be paying for the sick anyway. At least with this, there will be some of those costs off loaded to the private companies.

Maybe it's half-baked idea and I am missing some key issues with, but it makes sense to me.

[question everything]

21. Not surprised, really

Both Kavanaugh and Gorsuch have surprised us in the past two years leaving only Thomas and Alito as the ultimate RWers. And, one may hope for Barrett to surprise us too.

[Polybius]

32. The last Justice that we appointed that moved to the right was Byron White in 1962

Republicans get them wrong like 60% of the time.

[yardwork]

23. He's not the only one signaling skepticism today.

It can be misleading to read too much into the Q&A, but it sounds like many of the SCJ are skeptical of the argument that the ACA should be struck down on the basis of the penalty being changed to $0 in 2017.

I get the sense that most of them aren't persuaded by this particular argument. Roberts also sounds skeptical.

If Roberts, Breyer, Sotomayor, Kagan, and Kavanaugh vote against overturning it, that's at least 5-4. It might be more.

[not_the_one]

25. Posturing. I don't trust him for a second.

n/t

[Earthshine2]

52. Exactly! Why does anyone here believe anything Kavanaugh has to say?

He was also talking about overturning the election.

[Aristus]

27. What the hell happened?

Did Kavanaugh sober up?

[bucolic_frolic]

29. It's all profit-driven healthcare

That's what drives incentive to develop treatments and provide treatments. Insurance feeds the system. But we did have public health authorities at one time. Seems to me the Salk Polio vaccine was freely developed and distributed by the government at minimal cost.

Anywhere there's a big pool of money there is little incentive to drive down costs. Healthcare, college. Endowments grow unimpeded, costs rise far faster than inflation, and you can borrow hundreds of thousands of dollars to pay for it. Nobody watching the bottom line.

[George II]

33. Roberts has already said similar. If they're telling the truth about their opinions....

....that would make it 5-4 to save the ACA.

[Mr. Ected]

39. Did anyone administer a sobriety test before he said that?

I can just picture him emerging from a 3-day bender asking "I said WHAT?"

[Calista241]

43. I don't know why Repubs were so certain the ACA would fall.

They got everything they wanted, the only thing they didn't like about it was the name ACA or 'Obamacare.' Sever-ability has been a legal questions with a LOT of case law behind it. I think most court watchers were expecting the law to survive.

[Hoyt]

47. Exactly. I'd add, I don't know why so many Democrats are certain it will be repealed.

I get the consequences would be terrible, but still.

Just like the SC has thrown every election challenge from trump back at him, and will likely continue to do that, the Justices often surprise us.

[dlk]

53. The justices are aware Barrett's confirmation tarnished the court

[58Sunliner]

55. Maybe Brett wants you to know that he will play nice and we don't need to

expand the court.

[dlk]

59. When it comes to Republicans

Watch what they do, not what they say...

[Hortensis]

61. The ACA will not be severely harmed WHILE the GA senate seats are undecided.

My predication only, of course.

But remember, there are several other lethal threats to the ACA headed for the high court. This one is not their only chance.

As it was, I questioned if they would take out the ACA entirely so close to a highly questionable appointment, maybe at most just chisel away some more of it. Then last week we learned the Republicans can still lose one, and then two senate seats. And very possibly would if the court's new hard-core political agents acted now.

[mackdaddy]

65. The ACA is better for private insurance companies than Medicare for All.

I think the that is the bottom line $ fact the Kavanaugh is really considering.

If they kill the ACA then the chances for Medicare for All go up tremendously.

[Blue Owl]

70. Brett knows Kamala's eyeing him up closely...

[bucolic_frolic]

71. Count me as thinking these Angelic Faces are too good to be true

Are they setting us up for Grand Larceny, Election Style?

This facade meant to deceive us into letting our guard down?

Just skeptical, that's all.

[Raven123]

72. Hold the champagne. Assume nothing.

[BigmanPigman]

80. More stress, just what I do NOT need for my fragile health.