Today, Senate Democrats are boycotting the judiciary committee vote on Judge Amy Coney Barrett. According to a statement released by Minority Leader Senator Schumer, the confirmation of Barrett will result in the elimination of “health care from millions.” Americans should not be swayed by these scare-tactics. The confirmation hearings for Judge Amy Coney Barrett made clear there is zero chance the Supreme Court (with or without a Justice Barrett) will strike down the entire Affordable Care Act and eliminate coverage for those with pre-existing conditions.
First, while Judge Barrett was careful to observe ethical canons restricting what a judicial candidate can say, her comments regarding the ACA revealed a fair and careful judicial mind. As Judge Barrett told the Judiciary Committee, “I have no hostility to the ACA … and I will faithfully apply the law.”
Second, Judge Barrett repeatedly explained that, because Congress amended the ACA in 2017 to zero out the mandate’s penalty, the case currently pending before the Supreme Court, California v. Texas, involves very different legal questions than the prior case challenging the Affordable Care Act’s individual mandate (NFIB v. Sebelius).
Third, while there is a good argument that the individual mandate can no longer be upheld as an exercise of Congress’s Taxing Power — a tax that raises zero revenue is not much of a tax at all — the claim that the Supreme Court will strike down the entire Affordable Care Act is absurd. As Judge Barrett repeatedly opined, the most important question in California v. Texas is whether the individual mandate is severable from the rest of the Affordable Care Act.
In discussing severability with Senator Diane Feinstein, Barrett explained that severability doctrine is a bit like the game of Jenga — when you remove one unconstitutional provision, can the rest of the statute remain standing? Or is the invalid provision so vital to the entire statute that the whole thing topples? The question is one of congressional intent:
[W]ould Congress still want the statute to stand even with this provision gone? Would Congress still pass the same statute without it? So I think insofar as it tries to effectuate with Congress would have wanted, [severability doctrine is] the court and Congress working hand in hand.
Crucially, Judge Barrett stated that the Supreme Court should always presume Congress intended the remaining portions of a statute to survive. And six members of the current Court agreed just last term. This means that, if Barrett is confirmed, a solid seven-member majority of the Supreme Court believes that the “goal” of severability doctrine is to save the remaining portions of a statute, including the Affordable Care Act. These seven justices will be bound by the presumption that severability requires them to preserve the ACA to the extent possible.
In addition to the presumption in favor of severability, strong legal arguments in favor of severing the individual mandate from the rest of the ACA exist. The 2017 Congress radically altered the ACA when it zeroed out the individual mandate’s penalty. The individual mandate can no longer be considered crucial to the operation of the rest of the statute — invalidating that provision will not result in the previously predicted health insurance “death spiral” because Congress has already rendered the mandate unenforceable. Further, by zeroing out the mandate and leaving the rest of the ACA in place, the 2017 Congress made clear that Congress favorably viewed the Affordable Care Act without an enforceable individual mandate. Thus, the Supreme Court will almost certainly conclude that, even if the individual mandate is unconstitutional, it is severable from the rest of the Affordable Care Act.
The confirmation hearings solidified the nation’s views of Judge Barrett as a fair and impartial judge. They also established that the Democratic claim that a Justice Barrett would dismantle health care is nothing more than a politics-as-usual scare-tactic.