The odds are slim to none that a Justice Amy Coney Barrett would dismantle the Affordable Care Act and end preexisting conditions coverage. While some on the Left have engaged in what can only be called deranged attacks on her faith and her adopted children, most senators seem to have learned the obvious from her 2017 confirmation hearing: faith and family are off-limits. Now, say the Democrats, it’s all about healthcare.
This new argument misses the mark. Joe Biden noted that Barrett has a “written track record of disagreeing with” the Supreme Court decisions upholding the Affordable Care Act. Senate Minority Leader Chuck Schumer piled on, arguing a vote for Barrett “is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with preexisting conditions.”
To be sure, Barrett has been critical of the Supreme Court’s decisions upholding the Affordable Care Act in NFIB v. Sebelius and King v. Burwell. Indeed, there is much to criticize in the court’s opinions in those cases. But those cases say nothing about the current legal challenge.
In fact, not a single judge to look at the issue has voted in favor of striking down the entire Affordable Care Act. And scholars from both sides of the aisle have noted that the current challenge to the ACA is the weakest one yet faced by the Court — at least when it comes to eliminating the entire law.
By way of background, in 2012, the Supreme Court upheld the Affordable Care Act’s individual mandate to buy health insurance as an exercise of Congress’s taxing power (even though Congress had expressly said the penalty was not a tax). However, in the Tax Cuts and Jobs Act of 2017, Congress zeroed out the penalty attached to the individual mandate. Thus, the question presented in the pending case, California v. Texas, is whether the individual mandate remains constitutional after Congress zeroed out the penalty.
There is a good argument that the individual mandate is not a valid exercise of the taxing tower. A tax that raises zero revenue is not much of a tax at all. Chief Justice John Roberts was clear in NFIB that the “essential” feature of a tax is that it raises at least some government revenue.
But even if Barrett agrees that the individual mandate is unconstitutional, she is unlikely to vote to strike down the entire ACA. At the outset, there is a significant legal question as to whether states have standing to challenge the law. Further, under the traditional legal doctrine known as “severability,” the Supreme Court strikes down only so much of a statute as it must. Just last term, seven justices agreed that there is a “strong presumption” in favor of severability. That makes it unlikely that a majority of the current Court (with or without Barrett) will vote to strike down the entire Affordable Care Act.
In contrast, in 2012, there was a decent argument that the individual mandate was integral to the Affordable Care Act as a whole because stripping it out might result in an insurance “death spiral.” No longer. The legal landscape changed dramatically when Congress zeroed out the individual mandate. Severability depends upon congressional intent, and here, Congress plainly anticipated a functioning ACA without an enforceable mandate. Chief Justice Roberts wrote on this just last term in Seila Law. As long as a statute’s provisions are “capable of functioning independently” from the invalid provision, then the rest of the statute “remain[s] fully operative.” The court will examine the same question as it relates to the Affordable Care Act.
Perhaps significantly, while participating in a moot court at William and Mary Law School, Judge Barrett recently “voted” to uphold most of the Affordable Care Act. While one cannot read too much into this academic exercise, it is telling that none of the eight panelists — including Court of Appeals Judges Kevin Newsom of the 11th Circuit and Stephanos Bibas of the 3rd Circuit, and Barrett of the 7th Circuit — voted to strike down the entire Affordable Care Act.
Like the justice she would replace, Judge Barrett is an exceptional scholar, jurist, and mother to seven, including one child with special needs. The Left’s recent attempt to paint her as someone who will take away your healthcare is a disingenuous scare tactic. Don’t fall for it.