Lanhee Chen: Amy Coney Barrett, ObamaCare and the Supreme Court – Democrats are misleading America

Senate Democrats want the Supreme Court confirmation hearings of Judge Amy Coney Barrett to be all about ObamaCare and, more specifically, its protections for those with preexisting health care conditions.

Senate Judiciary Committee Ranking Member Dianne Feinstein said as much in the hearings Tuesday.

That’s because in a few weeks, the Supreme Court will hear arguments in California v. Texas, a lawsuit about the constitutionality of ObamaCare. Democrats argue, therefore, that a vote for Barrett is a vote to get rid of the law.

But, as Judge Barrett correctly noted, ObamaCare’s preexisting condition protections aren’t at issue before the Supreme Court in the case. Nor are the law’s limits on the lifetime maximum benefits that people may receive through health plans, as Senator Feinstein tried to suggest in her questioning.

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Democrats are trying to mislead Americans into believing that the most politically popular elements of ObamaCare are at risk while at the same time using some faulty assumptions to make their arguments.

The key issue on which the Court’s decision in California v. Texas will hinge is whether, if ObamaCare’s individual mandate is deemed unconstitutional, it can be cut away from the rest of the ACA, leaving the rest of the law to stand. Put another way, the Court can deem the mandate unconstitutional but still allow the remainder of the ACA to remain. 

Why is the Supreme Court even hearing this case? Because in 2012, it upheld—in a decision written by Chief Justice John Roberts—the constitutionality of ObamaCare’s individual mandate as a permissible exercise of Congress’ taxing authority. But in 2017, Congress passed a tax reform law that zeroed out the tax penalty associated with violating ObamaCare’s individual mandate.

A coalition of states led by Texas then challenged the law, arguing that because there was no longer a tax penalty associated with the mandate, ObamaCare no longer passed constitutional muster. And, because the individual mandate is integral to how ObamaCare works, if it is struck down, so too must the entire law.    

Judge Barrett has indeed been critical of the rationale the Supreme Court used to uphold the law in 2012.

She argued in a recent law review piece that Roberts’ decision “pushed [ObamaCare] beyond its plausible meaning to save the statute.” But the constitutionality of the individual mandate isn’t even the key legal issue at play in the current case before the Supreme Court. And this issue alone will not determine whether the rest of ObamaCare is allowed to stand.    

The key issue on which the law’s future will hinge is whether, if the individual mandate is indeed deemed unconstitutional, it can be cut away from the rest of ObamaCare, leaving it to stand.

In some cases, Congress directly states its intention for a law to remain, even when one of its parts is found unconstitutional. But, in others, Congress does not speak on this issue or is otherwise unclear.    

As Judge Barrett noted in her confirmation hearing Monday, a legal doctrine known as "severability" holds the key to understanding what the Supreme Court does under these circumstances.

Severability has come to mean that courts do what they can to save statutes, not invalidate them. In fact, the Court considers settled the idea that, in the words of a decision that goes back to the late nineteenth century, “one section of a statute may be repugnant to the Constitution without rendering the whole act void.”

The solution, as noted in a 2010 decision, is to “limit the solution to the problem, severing any problematic portions while leaving the remainder intact.” Thus, even if a future Justice Barrett were to rule the individual mandate unconstitutional, the weight of past precedent would make it difficult for her to find the rest of the ACA invalid. 

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What’s more, there is no evidence that Barrett would abandon this traditional view—neither in her decisions during her brief time on the Seventh Circuit Court of Appeals, nor in her scholarly writings before that.

In fact, Barrett actually considered the issues at play in the California v. Texas case last month, when she participated as a judge at a mock court hearing of the case at William & Mary Law School. While the mock hearing was explicitly branded as a “role-playing activity” and nothing more, Barrett voted against the states that are arguing the entire law should be struck down. Put another way, she did not use the mock hearing to take a contrarian view on the issue of severability.    

But let’s assume that Barrett does end up deciding against traditional severability principles and in favor of striking the rest of the ACA. In that situation, it’s unlikely that a majority of justices would join her in that view.

Justices Neil Gorsuch and Clarence Thomas have indeed expressed interest in the Court taking new approach on severability. But the other justices usually classified as conservative—Samuel Alito, Roberts, and Brett Kavanaugh—have given no indication that they would hew from the traditional severability principles.

Justice Kavanaugh, in fact, wrote approvingly of the Supreme Court’s long-held views on severability in a case decided earlier this year, arguing that there should be a “strong presumption” in favor of upholding a law, even when Congress hasn’t clearly stated its intention for it to survive if one of its components is deemed unconstitutional. 

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That’s why legal experts across the political spectrum predict that the Supreme Court is unlikely to strike down all of ObamaCare in this case. But that hasn’t stopped Democrats from trying to mislead the American people anyway.

Judge Barrett will make many decisions on the Court if she is confirmed but causing the demise of ObamaCare in the case before it this year won’t be one of them.