Justice Amy Coney Barrett's confirmation process was notably less dramatic than what we saw with Justice Brett Kavanaugh's confirmation two years ago. Democratic senators seemed less geared toward derailing the nominee and more toward positioning themselves for the November election.
The centerpiece of Senate Democrats’ attack lay with California v. Texas, a challenge to the Affordable Care Act (Obamacare) brought by multiple Republican state attorneys general — scheduled for Supreme Court oral argument one week after Election Day. Democrats argued that confirming Barrett would endanger the signature health policy of the Obama-Biden administration and risk access to health insurance in the midst of a pandemic for millions of people.
However you view Barrett’s nomination and the Supreme Court more generally, I’d counsel you not to believe the Democratic Party's arguments. As a legal matter, I can state with a high degree of confidence that there is almost no chance that the Supreme Court will toss out the entirety of the healthcare law. That would have been true with or without Barrett on the high court. (And I strongly suspect that most of the Democrats on the Judiciary Committee know this; they just see the issue as politically advantageous.)
strongly suspect that most of the Democrats on the Judiciary Committee know this; they just see the issue as politically advantageous.)
The political gambit is rather obvious. Not only are Republican attorneys general pursuing this lawsuit, but the Trump administration has filed a brief supporting it. And the strong-form claim in the litigation is that the entirety of the Obamacare law must fall. So as a matter of politics, the Democrats’ attack on the issue is fair enough: The Trump administration’s position undergirds their claims.
But people shouldn't worry that the Supreme Court is actually about to take away their health insurance. Yes, there is a constitutional challenge to the law. And a specific part of the law, the individual mandate to buy health insurance, may indeed fall. Yet that doesn’t at all mean the justices are likely to throw out the statute as a whole.
You may have heard that Congress already got rid of this individual mandate, and, in essence, that’s the case. In the 2017 tax-reform bill, Congress eliminated all financial penalties in the original Obamacare legislation for individuals who decided not to buy any private health insurance policy — meanwhile leaving intact the insurance exchanges and more popular Obamacare provisions, such as the requirement that insurance companies not deny coverage based on preexisting medical conditions.
In a strange twist, this congressional decision underlies the new Obamacare lawsuit in California v. Texas. It’s also why the Supreme Court isn’t going to strike down the whole law, however it rules on the now-neutered mandate itself.
The new challenge to the law follows directly from an earlier constitutional challenge to the statute, resolved by the Supreme Court in 2012, in NFIB v. Sebelius. In that case, Chief Justice John Roberts notably “saved” the individual mandate by construing the statutory penalties for not buying insurance as a “tax.” (As he openly admitted in his opinion, his was not the most natural reading of the statutory text. But because Congress could levy a general tax that exempted those with insurance policies, he reasoned, the Supreme Court should not strike the provision down as unconstitutional.)
The new Obamacare challenge is premised on this shift. Without the penalties that the chief justice viewed as a tax, the reasoning goes, the chief justice’s rationale for the law's constitutionality must go — and so too must fall the whole of the statute!
But it doesn’t work that way, and the Supreme Court isn’t going to buy that logic.
Yes, some justices who dissented in NFIB v. Sebelius and viewed the mandate as unconstitutional did opine that the individual mandate was not severable from the rest of the statute. The dissenting justices reached this conclusion largely based on the Obama administration’s representations in court: The government lawyers had argued that the mandate was indispensable to the broader functioning of the statutory scheme.
But it’s hard to take the same view now. It’s no longer 2012. And Congress has subsequently amended the statute. Therein lies the rub: By wiping away the penalties for not buying insurance policies but leaving the rest of the statute intact, Congress was implicitly saying that the remaining law was not dependent on the individual mandate to buy insurance being in place.
To be sure, a fair number of people signed onto the “severability” theory underlying part of the California v. Texas litigation, including a gaggle of state attorneys general, the Trump administration, and even the federal district judge who initially heard the case. But political actors often take losing legal positions for political reasons: The Clinton, Bush, and Obama administrations each lost 30 or more Supreme Court cases unanimously. And lawyers in national litigation almost always try to shop their cases, initially, to judges likely to rule in their favor.
While I’m very impressed with Barrett, I can’t predict with certainty her future Supreme Court jurisprudence. I have no doubt that she’ll reach some decisions I quite like and others that will disappoint me.
But I will make one clear prediction: The Supreme Court is not about to throw out the Affordable Care Act in California v. Texas. So, if you like your Obamacare policy, you can keep it.
This piece originally appears at the Washington Examiner
James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute. He is the author of “The Unelected: How an Unaccountable Elite is Governing America.” Follow him on Twitter here.
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