The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.