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The Supreme Court is hearing arguments on Tuesday in a challenge to the landmark Affordable Care Act.
The case is the third challenge to Obamacare to reach the justices since it was signed by President Barack Obama in 2010. The court has twice upheld the law, though three new conservative judges have joined the court since the last case was decided, in 2015, giving Republicans a 6-3 majority.
The case is being argued by telephone and streamed live to the public because of the Covid-19 pandemic. The court has scheduled 80 minutes of arguments, though it is likely that they will go on for two hours or longer. Justices ask questions in order of seniority.
Red states led by Texas and backed by President Donald Trump’s Department of Justice argue that the law’s individual mandate, which requires most Americans to obtain health insurance or pay a penalty, is unconstitutional.
The court upheld the mandate in 2012 as a tax, but Texas has said that when Congress lowered the penalty to $0 in 2017, that justification fell away. The red states argue that as a result, the entire law must be scrapped, which could result in more than 20 million Americans losing their health-care coverage.
California, which is leading a coalition of blue states defending the law, argues that those challenging it haven’t shown that they have been harmed, which is necessary to establish “standing,” or the ability to sue.
The blue states say the individual mandate is constitutional, and that even if the court finds otherwise, the justices can simply separate that provision from the rest of the legislation under a doctrine known as “severability.”
Two lower courts sided with Texas, including the 5th U.S. Circuit Court of Appeals, in saying that the individual mandate was unconstitutional. But the appeals court did not issue a ruling on whether it could be separated from the rest of the law.
The case comes to the court just a week after the election between Trump and President-elect Joe Biden. The two men proposed radically different visions for health care, with Trump pressing to eliminate the Affordable Care Act and Biden promising to build on its foundation.
The court will first hear arguments from Michael Mongan, the solicitor general of California, and Donald Verrilli, who is representing the House of Representatives, defending the Affordable Care Act. Verrilli formerly served as the Justice Department solicitor general under Obama.
Following those arguments, the court will hear from Texas Solicitor General Kyle Hawkins and Jeffrey Wall, the acting Justice Department solicitor general. Hawkins and Wall are asking the court to strike down the law.
The Supreme Court will likely decide the case, known as California v. Texas, No. 19-840, toward the end of June, when it typically issues its opinions in significant cases.