Amy Coney Barrett

Why Amy Coney Barrett is Unlikely to Have Any Meaningful Effect on the Future of the ACA

She's unlikely to cast a vote to strike down the law as a whole, and unlikely to have a decisive impact on its fate even if she does.

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A central element of Democrats' strategy in Amy Coney Barrett's confirmation hearings for the Supreme Court, which begin today, is to argue that her confirmation threatens the future of the Affordable Care Act. On November 10, the Supreme Court will hear oral arguments in Texas v. California, a challenge to the ACA brought by a coalition of GOP-controlled states, and other plaintiffs. Democrats fear that Barrett would cast a decisive vote to strike the law down.

In numerous media interviews I have done about the nomination since it was announced, the ACA issue has come up more often than any other. The focus on it is unfortunate, because Barrett is in fact unlikely to have much effect on ACA. There are lots of legitimate reasons to object to this nomination on both substantive and procedural grounds. But the Obamacare issue is unlikely to be one of them.

I summarized the convoluted history of the case here:

[T]he case arose because, in December 2017, the then-GOP-controlled Congress passed a tax reform law that zeroed out the monetary penalty attached to the Obamacare health insurance mandate, but left the mandate itself on the books. The ACA still officially has a provision requiring most Americans to purchase government-approved health insurance. But violators suffer no penalty if they choose not to follow this requirement.

In  its controversial 2012 ruling in NFIB v. Sebelius, the Court narrowly rejected a previous challenge to the constitutionality of the mandate. But Chief Justice John Roberts' controlling opinion for the Court only reached this conclusion by reinterpreting the mandate as a tax, thereby saving it from being declared unconstitutional.

After the 2017 tax reform bill eliminated the monetary penalty attached to the mandate, twenty red states filed a lawsuit arguing that what's left of the mandate was no longer constitutional, because it could not be a tax, if it doesn't raise any revenue. Much more controversially, they also contended that the rest of Obamacare must fall with the mandate, because the latter is such an important part of the statute that it cannot be "severed" from it.

In 2018, federal district Judge Reed O'Connor issued a highly dubious ruling embracing the plaintiffs' arguments on both points. In December 2019, a 2-1 decision by the US Court of Appeals for the Fifth Circuit upheld O'Connor's decision on the unconstitutionality of the mandate, but vacated and remanded his ruling on the severability issue, in effect requiring him to redo that analysis almost from scratch.

The Supreme Court's decision to hear the case [issued in March] cuts short what might have been prolonged further litigation in the lower courts.

The Trump administration has largely endorsed the plaintiff states' position in this case. Thus, the defense of the ACA has fallen to a coalition of liberal states who have chosen to intervene in the litigation, led by California.

There is a small kernel of truth to the Democrats' fears about Barrett, in so far as it is indeed likely that she would vote to overturn what's left of the individual mandate. We know that because, in a 2017 law journal review essay, she criticized Chief Justice Roberts' NFIB ruling upholding the individual mandate by construing it as a tax. Interestingly, the essay in question was a quite critical review of co-blogger Randy Barnett's book Our Republican Constitution, which I myself reviewed (more favorably) here.

Then-Professor Barrett wrote that "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power…. Had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress's commerce power."

If Barrett didn't think the original version of the mandate could plausibly be considered a tax back when it had a monetary penalty attached to it and could potentially raise some revenue, it's highly unlikely she believes the the post-2017 version qualifies as a tax, now that it cannot raise any revenue at all. That reasoning strikes me as sound. For reasons I described here, a Supreme Court decision invalidating the residual mandate would set a valuable precedent for the enforcement of constitutional limits on federal power.

But, with the exception of myself and a few other legal scholars, hardly anyone cares about the future of the residual mandate. Since Congress zeroed out the penalty in 2017, that provision no longer plays any meaningful role in the ACA. For everyone else, what matters is the severability issue, which will determine the future of the rest of Obamacare.

And on that point, the one indication of Barrett's views that we have is her vote—in a moot court—against the plaintiffs' position (though it is possible she based it on procedural considerations rather than substantive ones). A moot court vote is far from a definitive guide to her views on the subject. But it is at least suggestive.

Perhaps more importantly, the argument that the residual mandate is inseverable from the rest of the ACA is at odds with both the Court's current severability jurisprudence (which the Court recently reaffirmed in the robocall case), and alternative approaches recently put forward by conservative justices Neil Gorsuch and Clarence Thomas. The reasons why are explained more fully in an amicus brief I joined in the case, along with co-blogger Jonathan Adler and several other legal scholars.

It's unlikely that Barrett has a novel view of severability so restrictive that it would require collapsing the rest of the ACA in this case. Earlier challenges to the ACA split legal experts along conventional ideological lines. With few exceptions, conservative and libertarian judges and legal scholars (myself included) argued that the individual mandate was unconstitutional, while liberal ones took the opposite view. It's unsurprising that Barrett, too, had the same view of it as most other conservative academics.

By contrast, most conservative and libertarian experts take a dim view of the severability argument in the present case. The fact that Adler and I joined an amicus brief against it is just one example of the trend, since both of us were heavily involved in previous legal challenges to the individual mandate. Thus, there is no reason to presume that Barrett's political views or judicial philosophy would predispose her to support the plaintiffs' position on severability.

For all these reasons, it seems unlikely that Barrett has such a restrictive approach to severability that she would vote to rule the mandate inseverable from the rest of the ACA. To the extent you believe cynical political calculations might influence her decision, it's worth noting that she likely realizes that voting against the Trump administration position in this case would be an easy way to prove her independence and improve her image in the media and in elite legal circles.

But let's say that Barrett nonetheless chooses to endorse the plaintiffs' argument. Even in that scenario, it's unlikely to lead to the demise of the ACA. That's because the plaintiffs are still highly unlikely to get the necessary five votes for their position.

In  Barr v. American Association of Political Consultants, decided this past June, seven Supreme Court justices reaffirmed the Supreme Court's traditional approach to severability, which is highly unfavorable to the plaintiffs' position in the ACA case. The death of Justice Ruth Bader Ginsburg reduces that number to six. But six is more than enough for a majority.

Moreover, an opinion written by Justice Brett Kavanaugh and joined by Samuel Alito and Chief Justice Roberts emphasizes the following:

The Court presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute. For example, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., the Court set forth the "normal rule": "Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact." 561 U. S. 477, 508 (2010)…

Applying the presumption, the Court invalidates and severs unconstitutional provisions from the remainder of the law rather than razing whole statutes or Acts of Congress. Put in common parlance, the tail (one unconstitutional provision) does not wag the dog (the rest of the codified statute or the Act as passed by Congress). 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.

In Kavanaugh's terms, the residual mandate is a textbook example of a "tail" that cannot be allowed to "wag the dog" of the rest of the ACA. Indeed, it's a much smaller and less important tail than the one the Court ruled was severable in the robocall case. Kavanaugh and the others knew the ACA case would soon be coming to the Court when they wrote and endorsed these words. It's unlikely they would have joined such an opinion if they were interested in using the residual mandate as a lever to strike down the whole ACA.

As Jonathan Adler  explains, the plaintiffs' position also doesn't square well with the revisionist challenge to traditional severability doctrine put forward by Gorsuch and Thomas in the robocall case. But even if he has the Gorsuch-Thomas approach wrong, the six current justices who endorsed the traditional strong "presumption" against severability are more than enough to sustain the ACA.

As I have noted before, the history of Obamacare litigation is filled with many failed expert predictions, including some of my own. Thus, some humility is appropriate. Nonetheless, after the robocall case, I would be extremely surprised if there were more than two or three votes (including Barrett) on the Supreme Court for the plaintiffs' position on severability in Texas v. California.

To avoid misunderstanding, I should emphasize that none of this necessarily proves that Barrett deserves to be confirmed, or that the GOP is justified in ramming through her nomination before the election. For reasons I have explained here, I think a rushed confirmation process is a bad idea, and that the nomination should be held until after the winner of the election takes office.

I have also long argued that it is perfectly legitimate to oppose a judicial nominee based on  ideology and judicial philosophy, even if her qualifications are otherwise impeccable, and even if her views are in "the mainstream" of current legal thought. People who object to Barrett's views therefore have entirely legitimate reasons to oppose her, even aside from procedural complaints about the process. But it would be better if the debate over those views focused on the many legal issues where she has actually taken a clear position, and those positions are actually likely to make a difference. The ACA case doesn't qualify on either count.

NEXT: Circuit Court Nominations and Senate Obstruction

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  1. ” A moot court vote is far from a definitive guide to her views on the subject. But it is at least suggestive.”

    My understanding of a moot court is that the “judges” are ruling based on the quality of the “litigants” arguments and not on the overall merits of the case. i.e. it’s a competition where the “winner” is the side that makes the better case.

    I wouldn’t read too much into her ruling in a moot court setting.

  2. And as for the larger question of her nomination, I asked this before in an earlier thread without much of a response:

    If confirmed, she would be the fifth justice appointed by a president who lost the popular vote, making a majority on the court, including three justices that worked on the legal team to seat one of those popular-vote-losing presidents.

    How does this affect the legitimacy of the court in the eyes of public opinion?

    1. 1. I imagine different members of the public will have different opinions about the importance of popular votes to the legitimacy of Justices.

      2. How do you get to five ?

      1. Yeah, I don’t think you get to count Robert and Alito since they were nominated in George W. Bush’s second term, which he won with a majority of the popular vote.

  3. I continue to be amazed at the amount of time and energy consumed by this utterly bogus challenge to the ACA.

    If all that effort had gone to, say, people cleaning out their garages, or planting gardens, or washing their cars, it would have actually accomplished something useful.

    1. Well, I remember rolling my eyes at Randy Barnett et al about a decade ago as they laid out their arguments that led up to Sibelius. Many of us thought it preposterous that the court would buy it, but they did. Or at least some of it.

      So, we’ll see…

      1. Yeah.

        That was bogus too, but the current challenge is vastly worse. It ought to be rejected unanimously.

  4. The zeroing out of the individual mandate is clearly unconstitutional BUT it is severable from the larger Trump Tax Cut. So only that portion of the Trump Tax Cut gets repealed so that means Biden and the Democrats get $300 billion of Monopoly money to play with in 2021!! Thanks Trump judges!! Lololololol!!

  5. There’s also math.

    This is an appeal from the 5th Circuit, where the ACA nukers won. Consequently that decision will stand unless there’s a SCOTUS majority to reverse. A tie won’t do.

    Stipulating that the three liberals and Roberts will vote to reverse, then the case will be decided by the votes of the Thomas, Alito, Gorsuch and Kavanaugh (hereafter TAGK) and Barrett.

    (a) if any of TAGK vote for reversal, that’ll make five, and the 5th decision will be reversed whatever Barrett does

    (b) if all four of TAGK vote to uphold the 5th then :

    (i) if Barrett votes to uphold, then the 5th’s decision will be upheld 5-4
    (ii) if Barrett is not confirmed, the 5th’s decision will be upheld 4-4
    (iii) if Barrett votes to reverse, then the 5th’s decision will be reversed

    Consequently, given the fact that the 5th’s decsion is the status quo ante, Barrett’s confirmation can only make a difference to the SCOTUS result if she is confirmed and she votes to reverse the 5th.

    In any other circumstances her confirmation (or not) and her vote is irrelevant to the result. If one of TAGK votes to reverse, Barrett’s vote would only pad the reversers’ margin of victory, or reduce the upholders margin of defeat. If none of them vote to reverse, then Barrett joining them simply change’s the score to 5-4 rather than 4-4 if she’s not confirmed, but the 5th’s decision still stands.

    Thus if you are considering her nomination solely from the perspective of preserving the ACA, then you should support her confirmation, because her confirmation can only help the chances of preserving the ACA, it cannot hurt it.

    However, in practice, at least Gorsuch and Kavanaugh will go with Roberts, and I’d guess Barrett too. So at least 7 votes to reverse the 5th. I’d expect Thomas would also reverse as he has his own idiosyncratic view that the courts should be deciding cases and controversies rather than “striking down” laws. And Alito probably doesn’t want to be on the wrong end of an 8-1.

    But a good game.

    1. On further reflection, which perhaps should have been performed before I wrote all that, there’s a much shorter and clearer way of saying it.

      1. If there are already five votes to reverse the 5th, Barrett can make no difference.
      2. If there are only three votes to reverse, then there are already five votes to uphold the 5th, and so Barrett can make no difference.
      3. If it’s currently 4-4, the 5th will be upheld unless Barrett is confirmed and votes to reverse. Anything else – she makes no difference.

      1. Or you could say:

        If there are already five votes either way her vote won’t matter.

        If it’s 4-4 all she can do is reverse, since it will be upheld if she is not on the Court.

        1. You win.

          But of course you were standing on the shoulders of giants 🙂

          1. And so you snatch victory from the jaws of defeat.

            Anyway, I think the assumption is wrong. My own guess is that right now there are at least six votes to reverse, maybe more. I think only Thomas and Alito might go the other way, though I’d make it only about 60-40 for them.

            Of course, that’s because I think the argument here is worse than frivolous.

  6. If we are just going to vote based on ideology, why bother with hearings?

    1. Showmanship.

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