Would Amy Coney Barrett really strike down Obamacare? What liberals misunderstand
In the presidential debate, Joe Biden portrayed Amy Coney Barrett's nomination as part of a Donald Trump conspiracy to put an end to the Affordable Care Act, also known as Obamacare.
The Supreme Court has scheduled an oral presentation on November 10th in a case challenging the constitutionality of Obamacare. Republicans are marching twice to get Barrett re-elected, which would allow her to take part in the Obamacare case.
According to Democrats, a vote to endorse Barrett is a vote to repeal Obamacare and leave millions of Americans without health insurance.
In reality, it is highly unlikely that the court's Conservatives will rule that Obamacare as it stands, including Barrett if it is upheld, is unconstitutional. In fact, it is more likely that the court accepted the case in order to end the legal cloud over the program that emerges from decisions and actions of courts.
Biden misrepresented what Barrett wrote
In the debate, Biden made material misrepresentation of what Barrett wrote about Obamacare. She has not expressed an opinion on the Obamacare Constitution as it is currently constituted.
In a review of the book for a Notre Dame Law School publication, Barrett criticized the 2012 Supreme Court decision confirming the constitutionality of Obamacare, which was then constituted.
Judge Amy Coney Barrett speaks after President Donald Trump announced her appointment to the Supreme Court in the Rose Garden of the White House in Washington on Saturday, September 26, 2020.
There were two fundamental questions before the court. Did Congress have the power to require health insurance to be taken out? And if not, could the unconstitutional mandate be severed from the rest of Obamacare, or was it so closely tied to the overall system that all of the law had to be crushed?
USA TODAY Editorial Board: Donald Trump would repeal Obamacare and replace it with a Nothingburger
Four judges - the Conservatives and swingman Anthony Kennedy - found the mandate to be unconstitutional and so peculiar to the system that the entire law had to be abolished. Four judges - the Liberals - found that Congress had authority to enforce the mandate, so no problem.
Chief Justice John Roberts stated that the penalty for non-compliance was in fact a tax and was within the tax authority of Congress. And so Obamacare was spared.
Barrett criticized Roberts' logic
In the Notre Dame article, Barrett criticized Roberts for twisting the text of the statute and for having an obvious role in saving the program. She did this to illustrate the difference between Roberts' jurisprudence, interpretations in support of government action, and those of originalists and textualists who cling to the original or simple meaning and drop the chips where they like.
Obamacare's status today is much different than it was in 2012. And the principles of originalism and textualism determine a different outcome.
Since 2012, Trump and the Republicans of Congress have practically overturned the mandate to purchase health insurance by lowering the penalty to zero.
If the penalty is zero, it is difficult to argue that it is a tax any longer. And if it's not a tax, the two questions that the court examined in 2012 come back.
There is a possibility that conservatives will continue to find in court that Congress does not have the power to order people to buy certain products, such as health insurance. So the toothless mandate is unconstitutional.
Chances are Obamacare will hold up
However, the question of separability is fundamentally different.
Basically, the court looks at two things: Is the mandate essential to the overall program? And would Congress have passed the program without it?
In 2012 it was concluded that the mandate is part of the overall program and that Congress would not have passed Obamacare without this program. In 2020, it is impossible to reach these conclusions fairly.
The law exists because Congress decided to change it. Not really a mandate. But everything else is there: the exchange, the community rating, the subsidies. It is impossible to argue that what Congress created is contrary to what Congress intended.
And Obamacare works. Guidelines are available. People buy them. So it is impossible to argue any longer that the program cannot function without the mandate.
If the court decides that the mandate is unconstitutional but severable, it is not without consequences. Biden says he wants to reinstate penalties for not buying health insurance. Such a decision would rule that out.
But Obamacare as it exists today would be undisturbed.
The liberal assumption that Barrett is an automatic vote to completely crush Obamacare is unintentionally illuminating. Right-wing conservatives don't want the judiciary to be just another branch of political government. Liberals have a hard time understanding such a mindset.
Robert Robb is an editorial columnist for The Arizona Republic and azcentral.com, where this column originally appeared. Follow him on Twitter: @RJRobb
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This article originally appeared in the Republic of Arizona: Amy Coney Barrett Probably Wouldn't Knock Obamacare Down completely
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