U.S. Supreme Court wrestles with dispute over Baltimore climate suit

By Lawrence Hurley

WASHINGTON (Reuters) – U.S. Supreme Court justices on Tuesday appeared to lean toward energy companies in a dispute over a lawsuit filed by the city of Baltimore seeking monetary damages for the impact of global climate change.

The justices heard arguments on a legal issue that will help determine whether the lawsuit and others like it will be heard in a state court, as the city would prefer, or in a federal court, which corporate defendants generally view as a more favorable venue. The arguments did not address the underlying merits of Baltimore claims.

The Maryland city’s suit targets 21 U.S. and foreign energy companies that extract, produce, distribute or sell fossil fuels including BP PLC, Chevron Corp, Exxon Mobil Corp and Royal Dutch Shell PLC.

Some of the eight justices taking part in the case appeared skeptical about the position taken by Baltimore’s lawyers during the argument held by teleconference.

The court has a 6-3 conservative majority but conservative Justice Samuel Alito did not participate, likely because he owns stock in two oil companies involved in the litigation. If the court is divided 4-4 in its eventual ruling – due by the end of June – an earlier ruling in Baltimore’s favor by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals would stand.

Conservative Justice Brett Kavanaugh described the case as a “close call” but pointed out among other things that Baltimore’s arguments conflicted with a ruling written by the late liberal Justice Ruth Bader Ginsburg in 1996.

“It’s never good to be on the wrong side of Justice Ginsburg opinions,” Kavanaugh said of his former colleague who died in September.

The outcome is likely to affect around a dozen similar lawsuits by U.S. states, cities and counties seeking to hold such companies liable for the impact of climate change.

Baltimore and the other jurisdictions are seeking damages under state law for the harms they said they have sustained due to climate change, which they attribute in part to the companies’ role in producing fossil fuels that produce carbon dioxide and other greenhouse gases. The claims involve oil production and marketing, not the harmful emissions themselves.

The plaintiffs have said they have had to spend more on infrastructure such as flood-control measures to combat sea-level rise caused by a warming climate.

The legal question concerns a provision of federal law that puts limits on appeals courts reviewing decisions by a federal district court judge to remand a case to state court. The companies have said that in this instance the 4th Circuit had broad scope to review a district court’s decision because of a provision that allows for appeals of such rulings when a case directly concerns federal officials or government entities.

Liberal Justice Stephen Breyer noted that the applicable law was enacted to prevent delays in resolving cases, and that giving the energy companies a broad right to appeal could have the opposite effect.

“That means added time, added delay,” Breyer said.

The energy companies have argued that oil production is an inherently federal issue in which the government plays a key role, meaning the case should be heard in federal court. Greenhouse gas emissions that cross state and international lines are likewise an issue that cannot be addressed under state laws, the companies asserted.

Conservative Justice Amy Coney Barrett did not heed calls from some activists that she not participate because her father formerly worked as a lawyer for a Shell subsidiary.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

Trump campaign will again ask U.S. high court to upend election results

By Jan Wolfe

(Reuters) – President Donald Trump’s campaign said on Sunday it would again ask the U.S. Supreme Court to overturn results from the Nov. 3 election.

In a statement issued by the campaign, Trump lawyer Rudy Giuliani said the campaign had filed a petition asking the high court to reverse three rulings by a Pennsylvania state court interpreting the state’s rules for mail-in ballots.

“The Campaign’s petition seeks to reverse three decisions which eviscerated the Pennsylvania Legislature’s protections against mail ballot fraud,” Giuliani said in a statement.

Giuliani said the filing sought all “appropriate remedies,” including an order allowing Pennsylvania’s legislature to award the state’s 20 electoral votes to Trump.

The Supreme Court on Dec. 11 rejected a lawsuit filed by Texas and backed by Trump seeking to throw out voting results in four states, including Pennsylvania.

Several senior Republican U.S. senators, including Senate Majority Leader Mitch McConnell, have rejected the idea of overturning the 2020 presidential election in Congress.

A candidate needs 270 Electoral College votes to win the White House. Congress will count the electoral votes on Jan. 6.

U.S. Supreme Court throws out challenge to Trump census immigrant plan

By Lawrence Hurley

WASHINGTON (Reuters) -The U.S. Supreme Court on Friday threw out a lawsuit seeking to block President Donald Trump’s plan to exclude immigrants living illegally in the United States from the population count used to allocate congressional districts to states.

The 6-3 ruling on ideological lines, with the court’s six conservatives in the majority and three liberals dissenting, gives Trump a short-term victory as he pursues his hardline policies toward immigration.

“At present, this case is riddled with contingencies and speculation that impede judicial review,” the ruling said. The decision noted that the court was not weighing the merits of Trump’s plan.

Challengers led by New York state and the American Civil Liberties Union said Trump’s proposal would dilute the political clout of states with larger numbers of such immigrants, including heavily Democratic California, by undercounting state populations and depriving them of seats in the U.S. House of Representatives.

“If the administration actually tries to implement this policy, we’ll sue. Again. And we’ll win,” said Dale Ho, a lawyer for the American Civil Liberties Union who represents the challengers.

The administration has not disclosed what method it would use to calculate the number of people it proposed to exclude or which subsets of immigrants would be targeted. Acting Solicitor General Jeffrey Wall told the justices during the Nov. 30 oral argument in the case that the administration could miss a Dec. 31 statutory deadline to finalize a Census Bureau report to Trump containing the final population data, including the number of immigrants excluded.

During the oral argument, Wall told the justices that it is “very unlikely” the administration would amass data to exclude all immigrants in the country illegally. Instead, Wall said, it may propose excluding certain groups, such as the fewer than 100,000 in federal detention, and the total number may not be high enough to affect apportionment.

Liberal Justice Stephen Breyer wrote in a dissenting opinion that the government can currently try to exclude millions of individuals, including those who are in immigration detention or deportation proceedings, and the some 700,000 young people known as “Dreamers” who came to the U.S. illegally as children.

“Where, as here, the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed,” Breyer added.

There are an estimated 11 million immigrants living in the United States illegally. The challengers have argued that Trump’s policy violates both the Constitution and the Census Act, a federal law that outlines how the census is conducted.

The Constitution requires apportionment of House seats to be based upon the “whole number of persons in each state.” Until now, the U.S. government’s practice was to count all people regardless of their citizenship or immigration status.

By statute, the president is required to send Congress a report in early January with the population of each of the states and their entitled number of House districts.

The challengers have argued that Trump’s plan could leave several million people uncounted and cause California, Texas and New Jersey to lose House seats.

A three-judge panel in New York ruled against the administration in September.

The Supreme Court in June 2019 ruled against Trump’s effort to add a citizenship question to the census. Critics said the question was intended to frighten immigrants from taking part in the population count and artificially reduce population numbers in heavily Democratic areas.

(Reporting by Lawrence Hurley; additional reporting by Andrew Chung; editing by Jonathan Oatis)

Texas asks U.S. Supreme Court to help Trump upend election

By Makini Brice

WASHINGTON (Reuters) -The state of Texas, aiming to help President Donald Trump upend the results of the U.S. election, said on Tuesday it has filed suit against the states of Georgia, Michigan, Pennsylvania and Wisconsin at the Supreme Court, calling changes they made to election procedures amid the coronavirus pandemic unlawful.

The lawsuit, announced by the Republican attorney general of Texas, Ken Paxton, was filed directly with the Supreme Court, as is permitted for certain litigation between states.

Republican-governed Texas in the lawsuit accused election officials in the four states of failing to protect mail-in voting from fraud, thus diminishing “the weight of votes cast in states that lawfully abide by the election structure set forth in the Constitution.”

State election officials have said they have found no evidence of such fraud that would change the results. There was a surge in voting by mail in the election due to the pandemic, as many Americans stayed away from polling places to avoid the spread of COVID-19.

Texas is asking the Supreme Court to block the Electoral College votes in the four states – a total of 62 votes – from being counted. Texas also is asking the Supreme Court to delay the Dec. 14 deadline for Electoral College votes to be cast.

Paul Smith, a professor at Georgetown University’s law school, said Texas did not have a legitimate basis to bring the suit. “There is no possible way that the state of Texas has standing to complain about how other states counted the votes and how they are about to cast their electoral votes,” Smith said.

The Supreme Court is not obligated to hear the case and has said in previous decisions that its “original jurisdiction” that allows litigation between states to be filed directly with the nine justices, should be invoked sparingly.

(Reporting by Makini Brice, Jan Wolfe and Lawrence Hurley in Washington; Additional reporting by Tom Hals in Wilmington, Delaware; Editing by Will Dunham and Noeleen Walder)

U.S. Supreme Court hears World War Two-era Jewish property claims

By Lawrence Hurley

WASHINGTON (Reuters) – The lingering legacy of World War Two reached the U.S. Supreme Court on Monday as the justices weighed two cases involving claims by Jews in Germany and Hungary and their descendants whose property was taken amid persecution that culminated in the Holocaust.

The justices heard arguments in the two cases that hinge upon a federal law called the Foreign Sovereign Immunities Act that limits the jurisdiction of American courts over lawsuits against foreign governments.

In one case, the justices considered Germany’s bid to avoid facing a lawsuit in a U.S. court over medieval artwork that its former Nazi government pressured Jewish art dealers to sell in the 1930’s. The other concerns Hungary’s similar attempt to avoid litigation originally brought by 14 U.S. citizens who survived that nation’s World War Two-era campaign of genocide against its Jewish population.

The justices appeared more sympathetic to the arguments made by Germany than Hungary, while also recognizing foreign policy concerns of allowing such claims to be heard in U.S. courts.

The Germany case focuses upon a 17th century collection of medieval art known as the Welfenschatz that includes gem-studded busts of Christian saints, golden crucifixes and other precious objects. The plaintiffs – heirs of the art dealers – have said they are the rightful owners of the collection.

They sued in U.S. federal court in Washington in 2015, saying Germany owes them either the return of the artwork or more than $250 million in damages.

In 1935, a group of Jewish art dealers in Germany sold the collection to the state of Prussia, then being administered by prominent Nazi official Hermann Goering. The plaintiffs said that the sale was a “sham transaction” made under duress.

The art collection is currently in the possession of the Prussian Cultural Heritage Foundation, a German governmental entity.

Germany has said that U.S. courts have no role because the Foreign Sovereign Immunities Act does not allow claims over the alleged seizure of a citizen’s property by its own government. Some justices questioned that assumption, with Justices Neil Gorsuch and Clarence Thomas among others wondering if “stateless people” who are stripped of citizenship would be left without recourse.

Some justices said the language of the U.S. law seems to be clear that domestic property claims can be permitted if they fall within a broader genocide claim.

“It seems to cover the kind of property-taking that is at issue in this case,” Justice Elena Kagan said.

But Kagan and others also appeared to be worried about a ruling along those lines in part because it might require judges to undertake the contentious task of determining what constitutes a genocide.

A federal judge in Washington ruled against Germany in 2017. The U.S. Court of Appeals for the District of Columbia Circuit narrowed the case the following year, saying claims could proceed against the Prussian Cultural Heritage Foundation but not against Germany’s government itself.

The Hungarian Holocaust survivors filed suit in Washington in 2010 seeking restitution for possessions taken from them and their families when they were forced to board trains destined for concentration camps. A federal judge tossed out the lawsuit in 2017 but the D.C. Circuit revived it a year later, prompting Hungary to appeal to the high court.

Hungary has said that the possibility of “international friction” raised by the lawsuit means it should be dismissed and that the plaintiffs should sue in Hungary first.

The justices appeared reluctant to rule that foreign policy concerns could always be cited as a reason to toss out a lawsuit, but some also seemed reluctant to conclude that such issues should not be taken into account.

(Reporting by Lawrence Hurley; Additional reporting by Jan Wolfe; Editing by Will Dunham)

U.S. Supreme Court takes up Trump bid to revive Medicaid work requirements

By Lawrence Hurley

WASHINGTON (Reuters) – The U.S. Supreme Court on Friday agreed to hear a bid by President Donald Trump’s administration to revive pilot programs adopted by the states of Arkansas and New Hampshire that allow work requirements to be imposed on people who receive healthcare under the Medicaid program for the poor.

The justices took up the administration’s appeals of rulings by a lower court that found the programs unlawful.  Seventeen other states are pursuing similar policies.

The administration said in court papers that the appeals court rulings cast a legal shadow on the efforts in those other states to adopt work requirements for Medicaid, a state-federal program that provides medical insurance for the poor. New Hampshire and Arkansas filed court papers in support of the administration.

The U.S. Department of Health and Human Services in 2018 approved those projects as part of a push to put a conservative stamp on Medicaid, which was expanded in 37 states and the District of Columbia following the 2010 passage of the Affordable Care Act, also known as Obamacare, to help provide coverage to millions more Americans.

The department gave the go-ahead for states to carry out test projects requiring able-bodied people on Medicaid to work or do volunteer work.

(Reporting by Lawrence Hurley; Additional reporting by Nate Raymond; Editing by Will Dunham)

U.S. Supreme Court sides with challenge to California’s COVID-19 religious service curbs

By Lawrence Hurley

WASHINGTON (Reuters) – The U.S. Supreme Court on Thursday delivered a blow to California Governor Gavin Newsom’s pandemic-related ban on indoor religious services, siding with a church that defied the policy and challenged it as unconstitutional religious discrimination.

The decision followed a similar action by the justices on Nov. 25 that backed Christian and Jewish houses of worship that challenged New York state restrictions in coronavirus hot spots.

The justices, with no noted dissents, set aside a lower court ruling that rejected a challenge to Newsom’s policy by Harvest Rock Church Inc, which has several campuses in the state, and Harvest International Ministries Inc, an association of churches. Both are based in Pasadena, a city in Los Angeles County.

The justices directed the lower court to reconsider the case in light of their ruling in the New York case.

California’s pandemic-related restrictions have evolved throughout the year. Newsom, a Democrat, initially ordered houses of worship to be closed completely in March as part of a broad stay-at-home directive. Some restrictions were lifted in the spring, but new curbs were introduced in July after a surge in cases, which was when Harvest Rock Church first sued.

The state’s current plan imposed county-specific limits based on the number of COVID-19 cases. Under the policy, houses of worship in the worst-hit areas could not hold indoor gatherings but could do so outdoors. In other counties, houses of worship could have indoor events with capacity restrictions.

The state imposed similar restrictions on what it called comparable businesses and activities such as museums, movie theaters and restaurants that also draw crowds of people.

In the New York case, the justices said the New York restrictions “single out houses of worship for especially harsh treatment” in part by allowing various businesses to operate indoors without the same occupancy restrictions.

(Reporting by Lawrence Hurley in Washington; Additional reporting by Andrew Chung in New York; Editing by Jonathan Oatis)

U.S. court upholds Harvard race-based admissions; Supreme Court appeal expected

By Nate Raymond and Jonathan Stempel

BOSTON (Reuters) – A U.S. appeals court on Thursday upheld Harvard University’s use of race in undergraduate admissions, rejecting a challenge by affirmative action opponents who said the Ivy League school’s policy discriminates against Asian-Americans.

Opponents of the decision by the 1st U.S. Circuit Court of Appeals in Boston promised to appeal to the Supreme Court, where legal experts believe the 6-3 conservative majority could use the case to end more than 40 years of allowing race as a factor in higher education admissions.

The appeals court rejected claims by Students for Fair Admissions (SFFA), a nonprofit founded by anti-affirmative action activist Edward Blum, which drew support from Republican President Donald Trump’s administration.

SFFA said Harvard engaged in impermissible “racial balancing” to make it easier for Blacks and Hispanics to win admission, and did not narrowly tailor its use of race.

It said this violated Title VI of the Civil Rights Act of 1964, which the school must comply with in order to receive federal funding.

U.S. Circuit Judge Sandra Lynch, however, said Harvard’s use of race was not “impermissibly extensive” and was instead “meaningful,” because it prevented diversity from plummeting.

“Harvard’s race-conscious admissions program ensures that Harvard can retain the benefits of diversity it has already achieved,” she said.

Blum in a statement pledged to ask the Supreme Court “to end these unfair and unconstitutional race-based admissions policies at Harvard and all colleges and universities.”

The Supreme Court has allowed race to be used in college admissions to promote diversity in the classroom.

Harvard spokeswoman Rachael Dane said Thursday’s decision reflected efforts to “create a diverse campus that promotes learning and encourages mutual respect and understanding. … Now is not the time to turn back the clock on diversity and opportunity.”

The 2-0 decision upheld an October 2019 ruling by U.S. District Judge Allison Burroughs in Boston. A third judge on the appeals court panel, Juan Torruella, died last month.

Burroughs had concluded that Harvard’s admissions program was “not perfect” but that it the school had no “workable and available race-neutral alternatives.”

Lynch said the nature of Harvard’s admissions process, including that applicants win approval from a 40-person committee before being offered admission, “offset any risk of bias.”

The U.S. Justice Department had under Trump backed SFFA, arguing in a “friend-of-the-court” brief that Harvard “actively engages in racial balancing that Supreme Court precedent flatly forbids.”

The Trump administration filed a similar lawsuit on Oct. 8 against Yale University, accusing that Ivy League school of discriminating against Asian and white applicants.

Yale said it “does not discriminate against applicants of any race or ethnicity,” and would not change its admissions policies because of what it called the government’s “baseless” lawsuit.

SFFA is also pursuing a similar case against the University of North Carolina at Chapel Hill challenging its consideration of race as a factor in its admissions process. A non-jury trail in that case began on Monday.

(Reporting by Nate Raymond in Boston and Jonathan Stempel in New York; Editing by Catherine Evans and Jonathan Oatis)

U.S. Supreme Court justices appear unlikely to throw out Obamacare

By Lawrence Hurley and Andrew Chung

WASHINGTON (Reuters) – U.S. Supreme Court justices on Tuesday signaled they are unlikely to strike down the Obamacare healthcare law in a legal challenge brought by Texas and 17 other Republican-governed states and joined by President Donald Trump’s administration.

Chief Justice John Roberts and fellow conservative Brett Kavanaugh indicated skepticism during two hours of arguments in the case toward the stance by the Republican challengers that the entire law must fall if a single key provision, called the individual mandate, is deemed unconstitutional.

That provision originally required people to obtain insurance or pay a financial penalty. Trump signed a law in 2017 that erased the penalty, a change that Republicans then argued eliminated the constitutional justification for the provision as permissible under the power of Congress to levy taxes.

Roberts asked questions suggesting that because Congress did not repeal the entire law, formally known as the Affordable Care Act (ACA), when it eliminated the penalty, all of Obamacare should not be invalidated due to this one change.

If Roberts and Kavanaugh join the court’s three liberals in the court’s eventual ruling due by the end of June, the bulk of Obamacare would survive.

“It’s hard for you to argue that Congress intended the entire act to fall if the mandate was struck down,” said Roberts, who authored 2012 and 2015 rulings that upheld Obamacare in previous Republican legal challenges.

The case represents the latest Republican legal attack on the 2010 law, Democratic former President Barack Obama’s signature domestic policy achievement. Republicans also have failed numerous times to repeal Obamacare in Congress, though Trump’s administration has taken steps to hobble the law.

The justices heard arguments by teleconference in an appeal by a coalition of 20 states including Democratic-governed California and New York and the Democratic-controlled House of Representatives hoping to preserve Obamacare. The court, with three Trump appointees including Kavanaugh, has a 6-3 conservative majority.

After the arguments, President-elect Joe Biden, who served as Obama’s vice president, criticized the “right-wing ideologues” who pursued the “simply cruel and needlessly divisive” litigation.

“This argument will determine whether (the) healthcare coverage of more than 20 million Americans who acquired it under the Affordable Care Act will be ripped away in the middle of the nation’s worst pandemic in a century,” Biden told reporters in Delaware.

Citing a “moral obligation to ensure that here in America healthcare is a right for all and not a privilege for a few,” Biden promised to start building on the Affordable Care Act immediately after succeeding Trump on Jan. 20.

Obamacare expanded public healthcare programs and created marketplaces for private insurance. Without Obamacare, Biden noted, insurers could once again refuse to cover people with any pre-existing medical conditions such as diabetes, cancer, asthma or complications from COVID-19.

Roberts and Kavanaugh appeared to agree that the mandate to obtain insurance can be separated from the rest of the law.

“We ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed,” Roberts said.

The fact that Congress in 2017 left the rest of the law intact “seems to be compelling evidence,” Roberts added.

Kavanaugh added that “this is a fairly straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”

LEGAL STANDING

The justices – conservatives and liberals alike – raised questions over whether Texas and the other challengers had the proper legal standing to bring the case, worrying about similar scenarios in which someone might be able to sue over some other government mandate when no penalty exists.

Roberts said such a stance “expands standing dramatically” by enabling people to challenge a whole host of laws without experiencing direct harm.

Justice Amy Coney Barrett, Trump’s most recent appointee, asked skeptical questions about legal standing. Democrats, ahead of Barrett’s Senate confirmation last month, focused their opposition to her appointment on the Obamacare case, fearing she would vote to strike down the law. Her questions did not indicate she would.

Trump’s third appointee, Justice Neil Gorsuch, asked probing questions on standing, though he sounded skeptical about the individual mandate’s constitutionality.

The 2012 ruling authored by Roberts defined the individual mandate’s financial penalty as a tax, thus finding the law permissible under the Constitution’s provision empowering Congress to levy taxes.

The 2017 Republican-backed change eliminating the penalty meant the individual mandate could no longer be interpreted as a tax provision and was therefore unconstitutional, the Republican challengers argued in their lawsuit filed in 2018.

Texas-based U.S. District Court Judge Reed O’Connor in 2018 ruled that Obamacare was unconstitutional as currently structured following the elimination of the penalty.

The New Orleans-based 5th U.S. Circuit Court of Appeals last year also found the mandate unconstitutional but stopped short of striking down Obamacare. The Democratic-led states and House then appealed to the Supreme Court.

(Reporting by Lawrence Hurley and Andrew Chung; Editing by Will Dunham

Conservative U.S. Supreme Court prepares to hear Obamacare challenge

By Lawrence Hurley

WASHINGTON (Reuters) – The U.S. Supreme Court on Tuesday is set to hear arguments in a bid by Republican-governed states backed by President Donald Trump’s administration to strike down the Obamacare healthcare law, even as Joe Biden prepares to replace Trump in January.

Key priorities set by the Democratic president-elect included expanding healthcare access and buttressing Obamacare, the 2010 law formally called the Affordable Care Act that Republicans for years have sought to invalidate. The law was the signature domestic policy achievement of former President Barack Obama, under whom Biden served as vice president.

Although the court now has a 6-3 conservative majority bolstered by the Senate confirmation last month of Trump’s third appointee, Amy Coney Barrett, most legal experts think it would stop short of a seismic ruling striking down the law. The Supreme Court in 2012 and 2015 fended off previous Republican challenges to Obamacare.

Biden and other Democrats have criticized Republican efforts to strike down the law in the midst of a deadly coronavirus pandemic.

If Obamacare were to be struck down, up to 20 million Americans could lose their medical insurance and insurers could once again refuse to cover people with pre-existing medical conditions. Obamacare expanded public healthcare programs and created marketplaces for private insurance.

“Abolishing the Affordable Care Act would be deeply damaging to the American health care system and public health,” Georges Benjamin, executive director of the nonprofit American Public Health Association, said in a statement.

The justices will hear an expanded 80-minute oral argument by teleconference due to the pandemic.

The impetus for the Supreme Court case was a 2018 ruling by a federal judge in Texas that Obamacare as currently structured in light of a key Republican-backed change made by Congress violates the U.S. Constitution and is invalid in its entirety.

The justices in March agreed to hear an appeal filed by a coalition of Democratic-led states and the Democratic-controlled House of Representatives defending Obamacare.

They asked the justices to overturn a ruling by the New Orleans-based 5th U.S. Circuit Court of Appeals that declared that the law’s “individual mandate” that required people to obtain health insurance ran afoul of the Constitution. Republican states led by Texas and backed by Trump’s administration have asked the justices to throw out the law.

If the individual mandate is struck down “then it necessarily follows that the rest of the ACA must also fall,” Trump administration’s lawyers argued in court papers.

The Supreme Court in 2012 upheld most Obamacare provisions including the individual mandate, which required people to obtain insurance or pay a financial penalty. The court defined this penalty as a tax and thus found the law permissible under the Constitution’s provision empowering Congress to levy taxes.

In 2017, Trump signed a Republican-backed law tax that eliminated the financial penalty under the individual mandate, which gave rise to the Republican lawsuit. The tax law meant the individual mandate could no longer be interpreted as a tax provision and was therefore unlawful, the Republican challengers argued.

Democrats made the Republican threat to Obamacare a central feature of their opposition to Barrett’s confirmation to replace the late liberal Justice Ruth Bader Ginsburg.

Barrett, when she was a law professor, previously indicated she backed the challengers in the two previous Obamacare cases that reached the Supreme Court.

In recent cases with conservative justices in the majority, the court has declined to strike down an entire statute just because one part was unlawful.

“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” conservative Justice Brett Kavanaugh, another Trump appointee, wrote in a ruling earlier this year.

(Reporting by Lawrence Hurley; Editing by Will Dunham)