On June 17, 2021, the Affordable Care Act survived a third major challenge as the Supreme Court, in a 7-to-2 vote, turned aside the latest effort by Republicans to kill the health care law.
Chief Justice John G. Roberts Jr., who had cast the decisive vote to save the law in 2012, was in the majority. So was Justice Clarence Thomas, who had dissented in the earlier decisions.
“Whatever the act’s dubious history in this court,” Justice Thomas wrote in a concurring opinion, “we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the act—they have not identified any unlawful action that has injured them.”
Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, and Amy Coney Barrett also joined Justice Breyer’s majority opinion. At Justice Barrett’s confirmation hearings last year, Democrats portrayed her as a grave threat to the health care law.
The court did not touch the larger issues in the case: whether the bulk of the law could stand without a provision that initially required most Americans to obtain insurance or pay a penalty.
The challengers in the case sought to take advantage of the 2012 ruling, in which Chief Justice Roberts upheld a central provision of the law, its individual mandate requiring most Americans to obtain health insurance or pay a penalty, saying it was authorized by Congress’s power to levy taxes. They argued that the mandate became unconstitutional after Congress in 2017 eliminated the penalty for failing to obtain coverage because it could no longer be justified as a tax. They went on to say that this meant the rest of the law must also fall.
The challenge was largely successful in the lower courts. A federal judge in Texas ruled that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In 2019, the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail.
Justice Breyer did not address most of the arguments that were the basis of those decisions, focusing instead on whether the plaintiffs were entitled to sue at all.
The two individuals, he wrote, suffered no harm from a toothless provision that in effect merely urged them to obtain health insurance. Similarly, he wrote, the states did not sustain injuries tied directly to the elimination of the penalty that had been part of the individual mandate.
In a vigorous dissent, Justice Alito, joined by Justice Neil M. Gorsuch, said the third installment of the court’s Affordable Care Act trilogy “follows the same pattern as installments 1 and 2.”
“In all three episodes, with the Affordable Care Act facing a serious threat,” he wrote, “the court has pulled off an improbable rescue.”
Unlike the majority, Justice Alito went on to address the larger issues in the case, California v. Texas, No. 19-840, saying the mandate was now unconstitutional and could not be severed from much of the rest of the law.
Striking down the Affordable Care Act would have expanded the ranks of the uninsured in the United States by about 21 million people.