Why Amy Coney Barrett is Unlikely to Have Any Meaningful Effect on the Future of the ACA
A central element of Democrats’ strategy in Amy Coney Barrett’s confirmation hearings for the Supreme Court, which begin today, is to argue that her confirmation threatens the future of the Affordable Care Act. On November 10, the Supreme Court will hear oral arguments in Texas v. California, a challenge to the ACA brought by a coalition of GOP-controlled states, and other plaintiffs. Democrats fear that Barrett would cast a decisive vote to strike the law down.
In numerous media interviews I have done about the nomination since it was announced, the ACA issue has come up more often than any other. The focus on it is unfortunate, because Barrett is in fact unlikely to have much effect on ACA. There are lots of legitimate reasons to object to this nomination on both substantive and procedural grounds. But the Obamacare issue is unlikely to be one of them.
I summarized the convoluted history of the case here:
[T]he case arose because, in December 2017, the then-GOP-controlled Congress passed a tax reform law that zeroed out the monetary penalty attached to the Obamacare health insurance mandate, but left the mandate itself on the books. The ACA still officially has a provision requiring most Americans to purchase government-approved health insurance. But violators suffer no penalty if they choose not to follow this requirement.
In its controversial 2012 ruling in NFIB v. Sebelius, the Court narrowly rejected a previous challenge to the constitutionality of the mandate. But Chief Justice John Roberts’ controlling opinion for the Court only reached this conclusion by reinterpreting the mandate as a tax, thereby saving it from being declared unconstitutional.
After the 2017 tax reform bill eliminated the monetary penalty attached to the mandate, twenty red states filed a lawsuit arguing that what’s left of the mandate was no longer constitutional, because it could not be a tax, if it doesn’t raise any revenue. Much more controversially, they also contended that the rest of Obamacare must fall with the mandate, because the latter is such an important part of the statute that it cannot be “severed” from it.
In 2018, federal district Judge Reed O’Connor issued a highly dubious ruling embracing the plaintiffs’ arguments on both points. In December 2019, a 2-1 decision by the US Court of Appeals for the Fifth Circuit upheld O’Connor’s decision on the unconstitutionality of the mandate, but vacated and remanded his ruling on the severability issue, in effect requiring him to redo that analysis almost from scratch.
The Supreme Court’s decision to hear the case [issued in March] cuts short what might have been prolonged further litigation in the lower courts.
The Trump administration has largely endorsed the plaintiff states’ position in this case. Thus, the defense of the ACA has fallen to a coalition of liberal states who have chosen to intervene in the litigation, led by California.
There is a small kernel of truth to the Democrats’ fears about Barrett, in so far as it is indeed likely that she would vote to overturn what’s left of the individual mandate. We know that because, in a 2017 law journal review essay, she criticized Chief Justice Roberts’ NFIB ruling upholding the individual mandate by construing it as a tax. Interestingly, the essay in question was a quite critical review of co-blogger Randy Barnett’s book Our Republican Constitution, which I myself reviewed (more favorably) here.
Then-Professor Barrett wrote that “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power…. Had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce powe
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