The future the Affordable Care Act and the sweep of religious freedom are among the high-profile issues coming before the U.S. Supreme Court in its new term that begins Monday. The court could also be dragged into disputes over the presidential election before the year is over.
How soon the Senate acts on President Donald Trump’s nomination of federal appeals court judge Amy Coney Barrett to succeed Ruth Bader Ginsburg could make a difference when the court hears one of the biggest cases of the term — a challenge to Obamacare brought by 18 red states contesting the individual mandate, the provision requiring virtually all Americans to have health insurance or pay an income tax penalty.
The justices will hear arguments virtually due to the Covid-19 pandemic.
The Supreme Court first upheld Obamacare in 2012. The majority opinion written by Chief Justice John Roberts said the provision was a legitimate exercise of Congress’s taxing authority. But in 2017, the Republican-led Congress set the tax penalty at zero.
That led the red states to argue that the because the tax was effectively eliminated, the revised law could not be saved as a tax and was therefore an unconstitutional effort to require all Americans to obtain something. A federal judge in Texas agreed, and the Fifth Circuit Court of Appeals in New Orleans upheld that ruling.
The law has been allowed to remain in effect while the case is on appeal, and 20 million Americans now depend on it for their health insurance.
Sixteen blue states, led by California, asked the Supreme Court to overturn those lower court decisions. They said that with the tax penalty at zero, there effectively is no individual mandate, so the law is not unconstitutional.
“It may exhort Americans to buy health insurance, but it does not command them to do anything,” they said in asking the court to take the case.
If Barrett is confirmed by the time the court hears the case Nov. 10, she would probably be inclined to rule in favor of the red states on that question. In a 2017 law review article, she said the Roberts opinion “pushed the Affordable Care Act beyond its plausible meaning to save the statue.”
But even if the court rules that the individual mandate is unconstitutional, the justices must still decide whether that dooms the entire law or whether the rest of it can be left intact. It’s not at all clear how Barrett would answer that question, and it’s possible the court might rule that the rest of the law can be allowed to stand, including the requirement that insurance companies cover pre-existing conditions.
“The challengers to the statute have an uphill battle,” said Roman Martinez, a Washington, D.C., appeals court lawyer. “It seems fairly clear from the history that Congress wanted a toothless mandate coupled with the remaining provisions of the Affordable Care Act remaining in place.”
The issue of whether a law can survive if parts of it are struck down has traditionally depended on indications of congressional intent, he said.
In another potential blockbuster, the court will consider whether the Constitution provides a religious freedom exception to anti-discrimination laws.
The case was brought by Catholic Social Services, one of 30 agencies that contract with the city of Philadelphia to find homes for abused and neglected children. After learning in 2018 that the charity would not consider same-sex couples as potential parents for foster children, the city ended its contract with the church for that service.
In its lawsuit, the Catholic charity said endorsing same-sex couples as foster parents would violate its religious teachings about marriage. But lower federal courts said the city was acting properly to enforce its non-discrimination laws and that citing a religious belief does not excuse complying with civil rights laws.
The court’s decision could have a nationwide impact. Ever since the Supreme Court struck down laws against gay marriage in 2015, lawsuits have popped up around the country brought by bakers, florists, photographers, and others who say their religious beliefs will not allow them to provide services for same-sex weddings.
The court will also decide how much authority federal law provides for suing companies that do business in the U.S. for their conduct overseas, whether a law criminalizing unauthorized access to a computer goes too far and what kind of findings a court must make about a juvenile offender before imposing a sentence of life without parole.
And the justices may be asked to resolve disputes that arise after election day and could might be called upon to decide a case that could determine who won, as the court did in 2000 in ruling on a dispute from Florida on counting votes cast by punching holes in computer-read cards. Disputes could arise this time over counting mail ballots or in response to election day disruptions caused by natural disasters or state computer system failures, said Paul Smith of the Campaign Legal Center in Washington.
“The constant refrain about claims of fraud in mail voting seem calculated to set up the prospect of some kind of extended post-election squabble, and there may not be anybody else but the justices to handle it,” Smith said.