According to Sen. Kamala Harris, D-Calif., a member of the Senate Judiciary Committee and the Democrat nominee for vice president, if Judge Amy Coney Barrett is confirmed to the Supreme Court, she “will take health care from millions of people during a deadly pandemic.” That’s worth at least four Pinocchios.
Unfortunately, Harris was not alone in making this claim. Her Democratic Party colleagues used their opening statements in the Judiciary Committee’s Monday hearing to claim Barrett’s elevation to the U.S. Supreme Court would dismantle the Affordable Care Act. This, they argued, would deny millions of Americans with pre-existing conditions access to affordable health insurance. Without health insurance, they claim, these individuals would be denied health care.
Democrats dramatized their claims by pointing to large photographs of some of their constituents who have health insurance, they say, only because Obamacare does not permit insurance companies to deny coverage based on pre-existing conditions. Pretty compelling political theatre, but like most theatrical productions, it was make-believe.
The Democratic Party strategy is clear. They do not have the votes to either defeat Barrett’s nomination or to slow the process. They can, however, use the confirmation hearings to support Joe Biden’s presidential bid and to further their goals of retaking control of the Senate — all without spending a dime of campaign funds for TV time.
This strategy might work, but only if the American people believe the Democratic Party’s talking points and don’t know how the Supreme Court operates when only eight justices are voting on a case. Sadly, none of the Republican Judiciary Committee members seized the opportunity to expose the Democrat strategy for the smoke and mirrors that it is.
What’s Actually Up For Review
To begin, it’s important to understand the procedural posture of the ACA case that is before the Supreme Court. In 2012, the ACA was addressed by the Supreme Court in NFIB v. Sebelius. As neither the Commerce Clause nor the Necessary and Proper Clause gives Congress the authority to require people to purchase health insurance, the challengers argued the individual mandate to purchase health insurance was unconstitutional.
Yet, while a majority of the Supreme Court agreed that the individual mandate was beyond Congress’ Commerce Clause and Necessary and Proper Clause powers, Chief Justice John Roberts joined Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer in finding that the individual mandate was a legitimate exercise of Congress’s taxing power, even though the Obama administration specifically denied it was a “tax.”
In 2017, however, Congress passed reduced the individual mandate “tax” to zero dollars. Two individuals and 16 states then filed suit, arguing that since the “tax” that saved the constitutionality of the ACA had been repealed, there was no longer any congressional power to require individuals to purchase health insurance. They argued the remaining provisions of the ACA were not severable from the unconstitutional mandate provision and must be struck down, as well.
The U.S. District Court agreed, holding that elimination of the “tax” also eliminated the constitutional authority for the rest of the ACA, and declared the entire law unconstitutional. Because the federal defendants agreed with the plaintiffs that the repeal of the tax penalty rendered the individual mandate unconstitutional, 16 states and the District of Columbia intervened in the case and appealed the case to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit affirmed in part and reversed in part.
The court affirmed that plaintiffs had standing and that the individual mandate was unconstitutional because the repeal of the “tax” for failing to purchase coverage removed any constitutional power for Congress to impose the mandate. The court also reversed and remanded for a more detailed analysis of whether the rest of the ACA was severable from the unconstitutional individual mandate. The intervenor states petitioned the Supreme Court for a writ of certiorari. It is that case, California v. Texas, that is pending oral argument before the Supreme Court.
Considering Barrett’s True Effect on the ACA
The specific issue before the Supreme Court is not whether the ACA is a good idea. The issue is not whether Republicans or Democrats have a better plan for dealing with health care. The court is not being asked to craft health-care policy for the nation. The three points of dispute are whether the states have standing to appeal, whether reducing the individual mandate “tax” to zero rendered the individual mandate unconstitutional, and whether the individual mandate provision is “severable” without making the rest of the ACA unconstitutional.
During the opening hearings, Democrats claimed Barrett would cast the deciding vote that would deprive millions of Americans of access to critical health services. For the following reasons, that claim is demonstrably false. The actual effect of Judge Barrett’s nomination on the pending case, California v. Texas, would be virtually non-existent.
First, assume that Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh all vote to affirm the lower court’s decision that Obamacare was unconstitutional. Further assume that Justices Breyer, Kagan, Sotomayor, and Roberts would all vote to reverse. That leaves a 4-4 split. And, under Supreme Court rules, a 4-4 split means the lower court’s judgment is affirmed.
Thus, if Barrett isn’t confirmed, takes no part in the case because it was argued before her swearing-in as a justice, or — as some urged — she recuses herself, the decision of the Fifth Circuit is final. In that scenario, the case would go back to the District Court to apply a more granular analysis to determine whether the other provisions of the ACA are severable from the unconstitutional individual mandate.
If Barrett does take part in the case before the Supreme Court and votes to affirm the Fifth Circuit’s decision, as Democrats predict, and all the other justices vote as assumed above, the Supreme Court’s decision would be 5-4 to affirm the lower court’s decision striking Obamacare.
Such a result would mean that the plaintiffs have standing, the individual mandate is unconstitutional, and the “severability” of the remainder of the ACA’s provisions from the unconstitutional individual mandate is still subject to analysis under the court’s detailed and granular severability doctrine. Such a scenario would have the same effect as a 4-4 split and Barrett’s presence would make no difference in the outcome.
Hardly Any Foregone Conclusions
Barrett’s vote might be of consequence if the Supreme Court resolves the severability question without remand. Yet her vote would only matter if Justices Gorsuch and Kavanaugh adopt the views of their respective predecessors, Justices Scalia and Kennedy, Justices Thomas and Alito adhere to the severability analysis they voiced in Sebelius, and Barrett adopts the same position as the Sebelius dissent. Such an alignment is hardly a foregone conclusion and is an extremely weak basis upon which to claim that Barrett “will take health care from millions of people during a pandemic.”
If Barrett does take part and votes to affirm the lower court, but one of the other “conservative” justices votes with the “liberal” justices, there will be five votes to reverse and only four to affirm. Barrett’s vote will make no difference in the final disposition. Her confirmation most certainly would not deny millions of Americans access to health care, as the Democrats claim.
The sad part of the Democrats’s disingenuous game plan is that it relies upon the public’s lack of understanding of Supreme Court practice. While, indeed, the average American does not need to understand the nuances of Supreme Court procedure to live a full and productive life, it is quite another thing, however, for elected leaders to take advantage of that lack of understanding the complexities of Supreme Court practice to promote a false narrative that furthers a partisan political agenda. Republicans on the Senate Judiciary Committee should not permit such demonstrably false claims to go unchallenged.
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