After all, if you’re waging a losing battle over a court seat, you might as well get some electoral mileage out of it. So the array of glossy photographs that confronted Barrett as the hearings unfolded, featuring individual after individual whose health depends on the continuing protections of the ACA, was no doubt good politics.
As a matter of substance, not so much. Barrett’s nomination is about so much more than a law that has already survived two challenges and is likely, even with a Justice Barrett on the court, to survive this one.
Much more significant, and much more dangerous, is her approach to constitutional interpretation and her announced willingness to overturn cases that she believes were wrongly decided.
Ten years after the ACA’s enactment, the argument by 18 conservative states and the Trump administration that the entire edifice of the law should be demolished, from its expansion of Medicaid eligibility to its protection for individuals with preexisting conditions, is so far-fetched and convoluted that only a lawyer could make it with a straight face.
Here’s how it goes: The original challenge to the ACA centered on the constitutionality of the requirement that all individuals obtain health coverage or else pay a penalty. The court found in 2012 that this “individual mandate” exceeded congressional power to regulate interstate commerce. But the court, led by Chief Justice John G. Roberts Jr., ruled that the penalty, collected by the Internal Revenue Service, constituted a tax and was therefore a legitimate exercise of the congressional taxing power.
This did not sit well with, among others, Barrett, then a law professor, who accused Roberts of having “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Flash forward to 2017. Congress refused to repeal the ACA, thanks to the dramatic thumbs-down by then-Arizona Sen. John McCain (R). After that, Congress agreed to get rid of the individual mandate by setting the penalty for noncompliance at zero. It did nothing, and said nothing, about the rest of the law.
Enter Texas and its lawyers. They came up with the argument that by zeroing out the tax penalty, Congress had somehow managed to repeal the entire law — without actually saying so, and having just refused to do precisely that.
This contention has two parts. First, the only thing that saved the law’s constitutionality was interpreting the penalty as a tax. With that tax eliminated, the individual mandate was still technically on the books, and was now unconstitutional.
Second, Texas claims, that meant the entire law had to fall — the mandate could not be severed from the rest of the law. In enacting the ACA, Texas notes, Congress had stated that the law was part of an interoperable whole: the promise that people with preexisting conditions could obtain insurance, and at the same price as others, wouldn’t be financially workable without the individual mandate.
Fair enough. But then came the twin decisions not to repeal the ACA and to do away with the individual mandate. As the House of Representatives argues in its Supreme Court brief, Texas’s argument “bears little connection to reality.” Most remarkable, the brief notes, Texas contends “that imposing an unenforceable insurance mandate was so important that the 2017 Congress would have preferred to see the entire ACA fall rather than see the law continue to operate without such a requirement.”
To win at the Supreme Court, Texas and the law’s other opponents — including, most notably, the Trump administration — must overcome three hurdles. They must show that the plaintiffs have standing to sue because they are somehow injured by the law remaining in place — pretty hard when no one’s being required to buy insurance they don’t want. They must show that the law in its current incarnation is unconstitutional — again, pretty hard since Congress is no longer using its power to regulate commerce to force anyone to do anything.
Most challenging, they must show that if the law is unconstitutional, it falls in its entirety. Here the obstacle is that justices, including conservative justices, have found as recently as their most recent term that prudence dictates the court apply “a strong presumption of severability” — in other words, tweeze out the offending provision but leave the rest of a law in place.
“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Justice Brett M. Kavanaugh wrote in an opinion joined by Roberts and Justice Samuel A. Alito Jr.
The good news is that this court is apt to balk at the contention that Congress secretly wanted the whole law to fall. Barrett’s critique of Roberts’s reasoning doesn’t tell us about her views on severability. And, if needed, a Democratic Senate and president could repair the damage.
The bad news, which I wish Democrats would spend more time on, is that there remain ample other reasons to fear Barrett’s arrival.