Chief Justice Roberts noted that the mandate had in the earlier case been said to be “the key to whole act.” Justice Thomas said the court had been told that “this provision was the heart and soul of the Affordable Care Act.”
Indeed, when the earlier challenge to the health care law was argued in 2012, the Obama administration did say that the mandate could not be severed from two related provisions, one prohibiting insurers from turning away applicants and the other barring them from taking account of pre-existing conditions.
Donald B. Verrilli Jr., who successfully defended the law in 2012 as solicitor general in the Obama administration and appeared as lawyer for the House of Representatives on Tuesday, said experience had shown that the practical importance of the mandate had been overstated.
The health care law, he said, included both carrots, like subsidies, and the stick that was the mandate. “It’s turned out that the carrots worked without the stick,” he said.
The elimination of the law’s financial penalty for going without health insurance has indeed had little effect on how many people signed up for coverage through the law’s marketplaces. Enrollment in the marketplaces has decreased slightly since 2017, but it has not shown any signs of a “death spiral,” when only sick people buy coverage and costs skyrockets as a result.
Whether the mandate was now unconstitutional or not, Mr. Verrilli said, the balance of the law must stand. It was far-fetched, he said, that Congress had intended to doom the law by adjusting a monetary penalty as opposed to repealing it outright.
“There were efforts to repeal the entire A.C.A.,” Mr. Verrilli said, “Those efforts failed.”
Chief Justice Roberts said that adjusting the penalty while leaving the rest of law in place was telling. “It’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down,” the chief justice told Mr. Hawkins, “when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.”