Democrats repeatedly claim that, if confirmed to the United States Supreme Court, Judge Amy Coney Barrett will be the deciding vote in California v. Texas in favor of striking down the entire Affordable Care Act.
Can you identify which of the following statements about the Affordable Care Act litigation and Judge Amy Coney Barrett’s record on health care is false?
A. Not a single federal court of appeals judge has voted to strike down the Affordable Care Act or its protections for those with preexisting conditions.
B. The confirmation of Judge Barrett will mean the elimination of protections for millions of Americans with pre-existing conditions.
C. In a moot court, Judge Barrett voted to uphold the Affordable Care Act.
Let’s take these statements one at a time:
A. Truth! As legal experts on both sides of the political spectrum have recognized, California v. Texas presents the weakest of numerous challenges the Supreme Court has heard regarding the Affordable Care Act–at least with respect to invalidating the entire Act. To date, not a single federal court of appeals judge has voted to strike down the entire ACA in the course of the litigation.
B. Lie! The confirmation of Judge Barrett is not likely to result in the loss of pre-existing conditions coverage. Further, although Judge Barrett wrote skeptically about the Supreme Court’s 2012 decision in NFIB v. Sebelius, the legal landscape changed dramatically in 2017 when Congress chose to zero out the penalty for the individual mandate, while leaving in place the rest of the ACA. Where, as here, Congress has indicated that the rest of the statute can function without the invalid provision, the Court ordinarily strikes only the unconstitutional portion of a statute. Thus, even if the Supreme Court were to find that the individual mandate cannot be upheld under Congress’s Taxing Power, the rest of the Affordable Care Act will likely remain in place, including pre-existing conditions coverage.
C. Truth! In a 2020 William and Mary Law School moot court, Judge Barrett voted to uphold most of the Affordable Care Act including pre-existing conditions coverage. While a moot court is an educational exercise, and not necessarily indicative of how a judge would vote in an actual case, not a single one of the eight moot court judges voted to strike down the entire ACA. Three judges found the states had no standing to bring their legal challenge and five concluded that the individual mandate was severable from the rest of the statute.