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Photo: Al Drago/Getty Images

Most of the Affordable Care Act appeared likely to survive Tuesday as the Supreme Court heard oral arguments over the law’s individual mandate.

The big picture: Two members of the court’s conservative majority — Chief Justice John Roberts and Justice Brett Kavanaugh — suggested they’re unlikely to throw out the entire health care law, as Republican attorneys general and the Trump administration have urged. Their votes would be enough to save it.

Where it stands: The Trump administration and a group of red states, led by Texas, say the ACA’s individual mandate became unconstitutional in 2017, when Congress zeroed out the penalty for not carrying insurance.

  • Their more dramatic argument is that the court should throw out the rest of the ACA along with what remains of the mandate.

Driving the news: “It does seem fairly clear that the proper remedy would be to sever the mandate and leave the rest of the law in place,” Kavanaugh said.

  • Roberts was also unreceptive to Texas’ argument that the whole law has to fall.
  • “Here, Congress left the rest of the law intact. … That seems to be compelling evidence” that Congress did not intend to repeal the rest of the law, Roberts said.

Those two conservative justices, in addition to the court’s three remaining liberals, would be enough to save the bulk of the health care law, including its popular protections for pre-existing conditions.

  • The rest of the court’s conservative members spent less time on severability and didn’t send especially strong signals about how they would be likely to rule on that question if they invalidate the mandate.

Between the lines: The justices’ questioning also pointed toward another potential avenue to rule against Texas and leave the ACA intact. Several justices, including Roberts, questioned whether Texas had the legal standing to bring this case to begin with.

  • Texas doesn’t have to pay the individual mandate. It says it’s burdened by other parts of the law.
  • But that theory — allowing challengers to invalidate a whole law by challenging a specific provision that doesn’t harm them — could “kind of explode” the court’s approach to standing, Justice Elena Kagan said.

Yes, but: Oral arguments are always an imperfect guide to how the justices will ultimately rule. There have been surprises before — including in ACA cases.

Flashback: How a conservative Supreme Court could save the ACA

Go deeper

Updated Dec 11, 2020 - Politics & Policy

McCarthy joins 125 House Republicans in backing Texas lawsuit challenging election

McCarthy with Trump in 2017. Photo: Alex Wong/Getty Images

House Minority Leader Kevin McCarthy (R-Calif.) on Friday joined 125 House Republicans in backing the Texas lawsuit that seeks to invalidate the millions of votes in four battleground states that President-elect Joe Biden won.

Why it matters: McCarthy was left off of the original filing on Thursday and would not answer questions about whether he supported the long-shot lawsuit, which has been dismissed by legal experts as doomed to fail. He is now the highest-ranking Republican in Congress to back the suit, which President Trump has called "the big one."

House passes sweeping election and anti-corruption bill

Photo: Win McNamee via Getty Images

The House voted 220-210Wednesday to pass Democrats' expansive election and anti-corruption bill.

Why it matters: Expanding voting access has been a top priority for Democrats for years, but the House passage of the For the People Act (H.R. 1) comes as states across the country consider legislation to rollback voting access in the aftermath of former President Trump's loss.

Updated 4 hours ago - Politics & Policy

House passes George Floyd Justice in Policing Act

Photo: Stephen Maturen via Getty Images

The House voted 220 to 212 on Wednesday evening to pass a policing bill named for George Floyd, the Black man whose death in Minneapolis last year led to nationwide protests against police brutality and racial injustice.

Why it matters: The legislation overhauls qualified immunity for police officers, bans chokeholds at the federal level, prohibits no-knock warrants in federal drug cases and outlaws racial profiling.