with Alexandra Ellerbeck

Judge Amy Coney Barrett has already voted to knock down Obamacare’s individual mandate but keep the rest of the health-care law intact.

It was at a mock court hearing, held at William & Mary Law School in September. But that vote, which Barrett disclosed to senators during her Supreme Court confirmation hearing this week, could hint that President Trump’s nominee is skeptical of a high-profile but legally dubious quest to scrap the entire Affordable Care Act.

“What Barrett did in the moot court … was entirely consistent with what most right-of-center legal experts think should be done in the case,” said Ilya Somin, a libertarian law professor at George Mason University who has joined with liberal professors in a brief asking the court to keep the ACA.

In the hearing, Barrett presented herself as open to preserving the ACA without the mandate to buy health coverage.

That’s the most important question in a Supreme Court hearing scheduled for Nov. 10, which Barrett may be able to hear as a member of the court given the speed at which the Senate is moving to confirm her. 

In the case, Texas is asking the court not only to strike down the law’s mandate to buy coverage but also to rule the rest of the law can’t persist without it. Such a broad ruling would upend the most significant health-care law in decades, stripping millions of people of insurance coverage and consumer protections.

The argument goes like this: Because Congress zeroed out the penalty for buying health coverage, the accompanying mandate is unconstitutional. This argument hinges on a 2012 decision in which Chief Justice John Roberts upheld the mandate on the basis that its penalty was a tax.

Legal experts say there’s a good chance the court could strike down the mandate. But there would be little real-life impact to Americans if the justices said the rest of the law is “severable” and could remain in place. 

Senators repeatedly brought up that question of severability over the three days of hearings.

They plied Barrett on whether she’s willing to leave laws in place if parts are found unconstitutional. In response to a line of questioning from Judiciary Committee Chairman Lindsey Graham (R-S.C.), Barrett said judges generally try to favor keeping a law in place by severing it from the parts that are unconstitutional.

“The presumption is always in favor of severability,” Barrett told Graham.

Barrett elaborated in later questioning from Sen. Dianne Feinstein (D-Calif.), comparing the concept of severability to a Jenga game: If one provision of a law is pulled out, would the entire law stay intact, or collapse?

But Barrett repeatedly told the senators she wouldn’t disclose how she might rule on specific cases, not just on the ACA lawsuit but also on other cases involving everything from voting rights to same-sex marriage.

When questioned over her vote in the mock court, Barrett clarified the case wasn’t designed to reflect her actual views.

“To the extent that people think I might have been signaling to the president or anyone else what my views on the Affordable Care Act are, they couldn’t have taken any signal from that,” she told the committee. “But I wasn’t trying got signal anything because it was a mock exercise.”

Indeed, Barrett's vote in the mock lawsuit doesn't guarantee where she'd land on the real-life Obamacare lawsuit.

Somin has argued the court isn’t likely to strike down the ACA even with the inclusion of Barrett. He felt her comments to the committee confirmed she is sympathetic to the idea of severability, even though she was careful not to say how she would rule in the Texas case.

“I don’t think she tipped her hand in any kind of definitive way,” Somin told me. “But she did confirm what we have suspected.”

Jonathan Adler, a law professor at Case Western University, had even fewer takeaways from the hearing.

“We've learned that she understands severability doctrine — which is no surprise — and little else (and that's all we could really hope to learn),” Adler wrote me in an email.

Abbe Gluck, a Yale law professor who teamed up with Somin and Adler on a brief asking the court to preserve the ACA, said Barrett was under heavy pressure to appear open to severing the ACA from the mandate — and feels Barrett's comments don’t reveal anything about how she would actually rule as a justice.

“I do not think you can predict anything about where she will come down in California versus Texas from her remarks today,” Gluck said. “She understands what the doctrine is, but the doctrine still has to be applied.”

Yet Democrats pushed their message that voting to confirm Barrett amounts to a vote to ditch Obamacare.

They particularly focused on a law review article in which Barrett critiqued Roberts’s reasoning in his 2012 opinion upholding the health-care law. In that article, Barrett wrote that Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” 

When Sen. Dick Durbin (D-Ill.) questioned Barrett about the article, she responded that she is “not hostile” to the ACA — a phrase she repeated several times over the course of the hearing.

For his part, Durbin accused Republicans to rushing the confirmation process so Barrett could hear the ACA case in November.

“There is a political agenda here,” Durbin said. “November 10th is the absolute date they have to fill the vacancy if the president, and those who support him, and those who support the Republican platform are going to keep their promise to end the Affordable Care Act. They need that ninth justice, and that's why it has to be hurried. Unfortunately, that is the cloud, the orange cloud over your nomination."

Ahh, oof and ouch

AHH: Trump and Melania’s son Barron also tested positive for the coronavirus.

“Luckily he is a strong teenager and exhibited no symptoms,” Melania Trump wrote in an online post released by the White House. The first lady said that he tested positive around the same time as his parents but has since tested negative.

Melania Trump said that she experienced “body aches, a cough and headaches,” as well as fatigue. She described her symptoms, however, as “minimal” and said she opted for vitamins and healthy food over medicine. The president, who was hospitalized with the virus for three days, received therapies including steroids, supplemental oxygen and an experimental antibody treatment.

“I want people to know that I understand just how fortunate my family is to have received the kind of care that we did. If you are sick, or if you have a loved one who is sick—I am thinking of you and will be thinking of you every day,” the first lady wrote.

Trump said on Wednesday that Barron is fine, telling attendees at a rally in Iowa that his son “had it for such a short period of time, I don’t even think he knew he had it.” He cited the case as an example of young people being resilient to the virus, adding, "because they're young and their immune systems are strong and they fight it off."

OOF: Health officials plan an extra layer of vaccine scrutiny amid increasing public hesitancy.

“On top of rigorous final testing in tens of thousands of people, any COVID-19 vaccines cleared for widespread use will get additional safety evaluation as they’re rolled out,” the Associated Press’s Lauran Neergaard reports. “Among plans from the Centers for Disease Control and Prevention: Texting early vaccine recipients to check how they’re feeling, daily for the first week and then weekly out to six weeks.”

The move to add additional layers of scrutiny come as polls suggest public trust in a vaccine is declining. A new poll from the Associated Press-NORC Center for Public Affairs Research found that a quarter of Americans say they won’t get vaccinated and fewer than half of Americans (46 percent) say they want a vaccine. Another 29 percent are unsure. 

“The stakes are high: Shunning a COVID-19 shot could derail efforts to end the pandemic — while any surprise safety problems after one hits the market could reverberate into distrust of other routine vaccines,” Neergaard writes.

The Food and Drug Administration pushed back against the White House to issue rigorous guidance for any emergency use authorization, making it extremely unlikely a vaccine will be approved before Election Day. Scientists will also review the evidence for any vaccine in a public meeting before approval.

“The chances of there being secret hanky-panky are almost zero, because everything is going to be transparent,” Anthony Fauci, the top U.S. infectious-diseases expert, told the AP.

OUCH: The FDA is pushing back on the Trump administration's attempt to rebrand a coronavirus vaccine emergency authorization.

The Department of Health and Human Services has pushed to alter the terminology around an emergency approval of a vaccine, relabeling it a “pre-licensure.” Department officials have pitched the change in terminology as a way of plugging a loophole to ensure elderly Americans are able to receive a vaccine for free. While Congress mandated that Medicare cover the cost of any licensed vaccine, it did not include drugs authorized for emergency use, potentially forcing millions to pay out of pocket, Politico’s Adam Cancryn reports.

But FDA Commissioner Stephen Hahn “firmly opposed the idea, amid concerns that failing to stick to the FDA’s technical language would erode the agency’s credibility and open it up to accusations that it’s allowing politics to influence its role in the Trump administration’s vaccine hunt,” Cancryn reports.

One senior administration official told Politico that Hahn is worried the public might conflate the term “pre-licensure” with the shot being fully licensed, even though it will not have passed the significantly higher safety and efficacy standards needed for that designation. After a pair of early incidents in which the FDA was seen as overselling covid-19 treatments backed by the president, Hahn has sought to emphasize the agency’s independence and align himself with its career scientists.

But HHS officials argue the FDA is already holding a vaccine to higher standards than would be normal for an emergency authorization. They argue that a change in terminology would reflect those standards and avoid the need for Congress to get involved in a legislative fix around vaccine payment. 

Coronavirus leadership

The Trump administration's covid-19 coordinator is under scrutiny for her role in hospital data debacle.

When Deborah Birx, a physician with a background in HIV/AIDS research, was tapped to lead the White House’s coronavirus task force, even Trump’s critics praised the appointment as a smart choice. Birx had strong scientific credentials and a reputation for data-driven leadership, Science’s Charles Piller writes

Some health experts and Centers for Disease Control leaders, however, have criticized Birx's move to shut down the CDC’s system for collecting hospital data in favor of a private contractor. The decision was widely criticized and resulted in confusion in data reporting among hospitals and scientists.

“Interviews with nine current CDC employees, several of them senior agency leaders, and 20 former agency leaders and public health experts — as well as a review of more than 100 official emails, memos, and other documents — suggest Birx’s hospital data takeover fits a pattern in which she opposed CDC guidance, sometimes promoting President Donald Trump’s policies or views against scientific consensus,” Piller reports.

Some criticized Birx for not speaking up when Trump floated the idea of using disinfectant to combat covid-19 and for pressuring CDC officials to loosen guidance on schools reopening. Admirers of Birx say she has crossed the president in her insistence on masks and in comments portraying the severity of the virus.

“Birx is in a horribly difficult position,” Nancy Cox, former director of CDC’s influenza division, told Science. “She wants to stay in the good graces of the president and the rest of the administration while trying to do the right thing with respect to public health. Do I view her as a good scientist who gets things done? Yes.” 

Election 2020

Biden's plan for combating the coronavirus calls for a more involved federal government.

When it comes to combating the virus, “Biden has staked his campaign on promising a more muscular federal role than Mr. Trump’s leave-it-to-the-states approach,” the New York Times’s Abby Goodnough and Sheryl Gay Stolberg report. “Many of his ideas carry echoes of Roosevelt’s New Deal vision of the robust role the U.S. government should play in helping the nation recover from a crisis.”

Biden has indicated he wants to mobilize 100,000 Americans to conduct contact tracing, appoint a “national supply chain commander” to coordinate the distribution of protective gear and tests, and aggressively invoke the Defense Production Act to build up supplies.

Biden has envoked the parallels with Roosevelt’s New Deal, commenting, “I’m kind of in a position that F.D.R. was,” in a recent interview with the New Yorker.

“But the country Mr. Biden would lead is very different from Roosevelt’s America, and his coronavirus response proposals may not be all that easy to put into place,” Goodnough and Stolberg write. “The pandemic has been caught up in partisan politics, and the public has lost faith in government institutions. And there will be no fireside chats in today’s fractious social media environment.”

The success of Biden’s approach, should he win, may depend on his ability to build support among both Democratic and Republican governors and to persuade Americans to follow public health advice.

Nature endorses Biden.

Nature, a top scientific journal, endorsed Biden for the U.S. presidency, joining other prestigious publications in the field, including the New England Journal of Medicine and Scientific American, which endorsed Biden in the first such show of support in its 175-year history.

No U.S. president in recent history has so relentlessly attacked and undermined so many valuable institutions, from science agencies to the media, the courts, the Department of Justice — and even the electoral system, the editorial board of Nature wrote.

Republicans are divided over whether to produce a replacement proposal for the ACA.

As an impending challenge to the ACA before the Supreme Court raises the possibility that the health law could be invalidated, some conservative lawmakers have expressed reluctance to put forward a replacement plan. Many argue that even with a 6-3 conservative majority should Amy Coney Barrett be confirmed, it is still unlikely the law will overturned, The Wall Street Journal’s Stephanie Armour writes.

“Behind the scenes, the White House has hammered out some replacement proposals based on various scenarios, according to people familiar with the discussions who declined to provide specific details,” Armour writes. But it “doesn’t want to release specific replacement scenarios in part because the makeup of Congress could shift after the election, and there also are disagreements over parts of the proposals, according to one person familiar with the discussions.” 

The lack of a plan has left Republicans open to attack from Democrats, who argue Barrett’s nomination could risk the health care of 20 million Americans if the ACA is invalidated.

Some conservative groups like the Heritage Foundation and the Galen group have been working on a replacement plan known as Health Care Choices, in which federal subsidies that go toward Medicaid expansion and ACA tax credits would instead go to grants for states to expand coverage for low-income individuals.

If the ACA is struck down and Democrats control Congress, on the other hand, they might be able to pass legislation that separates the health law from the individual mandate or reinstates a monetary penalty, both of which could legally save the ACA.

Videos from a group of conservative activists reveal discussions about voting access and health care.

Videos obtained by The Post from meetings with the Council for National Policy, a little-known group that serves as a hub for conservative activists and donors, show influential conservatives discussing election tactics and at times amplifying conspiracy theories around electoral fraud, The Post’s Robert O’Harrow Jr. reports.

Originally launched during the Reagan administration by figures in the religious right, the CNP is influential in conservative politics and maintains strong links to the White House. During one meeting in August a Republican activist Charlie Kirk celebrated the fact that university campuses were closed because it meant fewer left-leaning students would vote. 

Activists also described an advertising campaign led by a group of conservative nonprofits to aimed at swaying voters to a Republican free-market approach to health care during a rare open CNP session on August 21. The effort involves former House speaker Newt Gingrich and former health and human services secretary Tom Price, who said that organizers were asking allies in Congress to introduce a resolution that included themes around personalized health care. 

Sugar rush