When she was a law professor, Judge Amy Coney Barrett tried to puncture arguments favoring Obamacare. Now senators will probe how Barrett, as a Supreme Court justice, would rule on the decade-old health insurance overhaul.
In the upcoming Senate Judiciary Committee hearings, Democrats will particularly emphasize Barrett’s possible role in the fate of the Affordable Care Act that has provided new health coverage to more than 20 million people. They want to tie Barrett to President Donald Trump and GOP efforts to invalidate the entire law, something recent polls show goes against public opinion.
A CNN poll released earlier this month found that 57% of Americans surveyed now favor Obamacare (up from 50% in 2017), and that 61% do not want the Supreme Court to overturn it.
CNN also found that opposition to overturning the law is nearly unanimous among Democrats (96%), and that most independents agree (62%). Conversely, 73% of Republicans polled said the court should overturn the law.
The Supreme Court is scheduled to hear arguments on November 10 regarding whether the whole law should be tossed out. That could be just weeks after the full Senate has confirmed a new Justice Barrett.
A group of Republican states led by Texas, and backed by the Trump administration, has asked the justices to invalidate the entire law, including provisions that expanded Medicaid to low-income adults, allowed children to remain on their parents’ policies until age 26 and guaranteed coverage for people with pre-existing health conditions such as diabetes and cancer.
Trump has opposed the law from its inception and derided the Supreme Court for upholding it. He had pressed Congress to throw out Obamacare to no avail. Now his administration is trying to do through litigation what it failed to accomplish legislatively. Trump’s third appointee to the nine-member high court could soon be in a pivotal role toward that effort.
Barrett would succeed Justice Ruth Bader Ginsburg, who died on September 18 and who had consistently voted for the ACA. When the justices first rejected a challenge to the constitutionality of the 2012 law, liberal Ginsburg was part of the narrow 5-4 majority. So was conservative Chief Justice John Roberts. He cast the fifth vote, with four liberals, to uphold Obamacare, but only after construing a disputed provision requiring Americans to purchase health insurance to be valid under Congress’ taxing power.
Roberts’ ruling has drawn the scorn of conservatives ever since.
Barrett, then a University of Notre Dame law professor, wrote in a 2017 law review essay, “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.”
She continued, “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 power.”
Senate Minority Leader Chuck Schumer on Sunday pointed to that essay in calling for Barrett to commit to recusing herself from the Supreme Court’s consideration of the law should she be confirmed to the bench, saying her “record on ACA is filled with evidence demonstrating the need for recusal.”
In 2015, after the high court rejected a separate challenge, Barrett remarked on Boston-based National Public Radio program that she thought dissenting justices had “the better of the legal argument.”
The new case, Texas v. California, centers on the consequences of Congress’ action in 2017 zeroing out the ACA’s tax penalty for lacking health insurance.
An initial question is whether that insurance mandate is now invalid because there is no enforceable penalty to be regarded as a tax. The practical effects of that answer will be eclipsed by the larger issue of whether one possibly invalid provision (no longer enforced) would doom the entire law, or whether the court effectively carve off that part and upheld the rest of the comprehensive ACA or certain sections of it.
California and other Democratic-dominated states have presented arguments to the justices countering the attempt by Texas and the Trump administration to take down the law, including that the court routinely severs unconstitutionally flawed provisions to preserve the rest of a law. They are backed by the Democratic-led US House of Representatives and dozens of “friend of the court” groups that stress Congress intended the ACA to survive even if the individual mandate was not enforced with a tax penalty.
Because of the stakes for health insurance nationwide, particularly in the middle of the coronavirus pandemic, the case is arguably the most important of the 2020-2021 annual session. It would also offer a test of whether Chief Justice Roberts can – for a third time and with a new Trump justice – create a cross-ideological compromise to save the law.
Barrett commented publicly on earlier litigation related to Obamacare while she was still a full-time Notre Dame law professor, before her 2017 appointment to the 7th US Circuit Court of Appeals.
Separate to her academic commentary on the ACA, Barrett noted in her recently submitted Senate questionnaire that she joined a February 2012 public statement entitled “Unacceptable.” Organized by the Becket Fund, the statement reflected opposition to the Obama administration plan for accommodating certain religious employers under the ACA’s contraceptive coverage mandate.
She said she signed the letter as a faculty member at a religious institution.
Barrett’s 2017 essay exploring the 2012 Supreme Court ruling known as National Federation of Independent Business v. Sebelius focused on a book written by Professor Randy Barnett critical of the ruling.
Barrett asserted that author Barnett was “surely right that deference to a democratic majority should not supersede a judge’s duty to apply clear text.”
Throughout her essay, Barrett was skeptical of Roberts’ approach and wrote favorably of her mentor Justice Antonin Scalia, who dissented in the 2012 NFIB v. Sebelius, as well as the 2015 King v. Burwell decision that later upheld the ACA.
“To the extent that NFIB v. Sebelius expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text, its approach is at odds with the statutory textualism to which most originalists subscribe,” Barrett contended. “Thus Justice Scalia, criticizing the majority’s construction of the Affordable Care Act in both NFIB v. Sebelius and King v. Burwell, protested that the statute known as Obamacare should be renamed “SCOTUScare” in honor of the Court’s willingness to ‘rewrite’ the statute in order to keep it afloat.”
“For Justice Scalia and those who share his commitment to uphold text,” continued Barrett, a former law clerk to Scalia, “the measure of a court is its fairminded application of the rule of law, which means going where the law leads. By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.”
When Trump presented Judge Barrett to the public in a September 26 Rose Garden ceremony, Barrett emphasized her allegiance to Scalia.
Said Barrett, “His judicial philosophy is mine too.”
This story has been updated with comments from Senate Minority Leader Chuck Schumer.
CNN’s Devan Cole contributed to this report.