"It's hard for you to argue that Congress intended the entire act to fall when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act," Justice Roberts said. (Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.)
With the fate of health insurance for more than 20 million Americans at stake, two justices—Chief Justice John Roberts Jr. and Justice Brett Kavanaugh—seemed inclined on Tuesday to form a majority to preserve the Affordable Care Act in nearly its entirety.
The two justices, along with their three liberal colleagues, indicated that if the health care law's individual mandate to purchase health insurance was no longer constitutional following Congress's action in 2017, a doctrine known as severability would allow the court to excise the mandate but keep the rest of the law in place.
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