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Amy Coney Barrett Testifies on the ACA Severability Case

She didn't definitively tip her hand. But her statements reinforce my view that she is likely to rule the residual individual mandate unconstitutional, but also that it is severable from the rest of the law.


Judge Amy Coney Barrett testifies at her Senate confirmation hearing.


In a post published yesterday, I explained why Amy Coney Barrett is unlikely to vote to strike down the entire Affordable Care Act in Texas v. California, the case on that subject currently before the Supreme Court. In that post, I also described the background of the case and the issues at stake, in some detail.

Yesterday and today, Judge Barrett answered a number of questions about the ACA at her confirmation hearings. What she said doesn't definitively tip her hand on how she might vote. But it does further reinforce my impression that she is unlikely to give the plaintiff Republican states and the Trump administration what they want. Most notably, she confirmed that she had voted to strike down the residual individual mandate but also sever it from the rest of the ACA in a recent moot court on the subject:

Supreme Court nominee Amy Coney Barrett said she did not strike down the Affordable Care Act (ACA) but did find its individual mandate unconstitutional in a recent moot court case, while stressing her actions in the moot court case did not actually reflect how she might rule on ObamaCare if confirmed to the high court….

"The vote was, in the panel, the majority said that the mandate was now a penalty and was unconstitutional but severable," Coney testified in front of the Senate Judiciary Committee, referencing a moot court case she participated in at William & Mary Law School. "I voted to say that it was unconstitutional but severable."

Barrett stressed that the moot court was just a hypothetical exercise and does not necessarily reflect her actual views of the case. But it is still at least somewhat indicative.

In addition, Barrett repeatedly stressed that the case currently before the Supreme Court comes down to severability, which is a different issue from the constitutionality of the individual health insurance mandate (a question on which she had been critical of Chief Justice Roberts' 2012 ruling that the mandate should be upheld because it could be interpreted as a tax). This distinction is a crucial one, and Barrett's emphasis on it further reinforces the view that she is unlikely to strike down the ACA as a whole. Barrett furthered emphasized that "the presumption is always in favor of severability." If so, that doesn't bode well for the plaintiffs in Texas v. California, as its highly unlikely they can overcome that presumption, given the insignificance of what's left of the individual mandate to the overall functioning of the ACA.

I am far from the only commentator to reach this conclusion about Barrett's position on the ACA case. Indeed, this seems to be an emerging consensus among experts. Yesterday, prominent liberal constitutional law scholar Eric Segall (who is no fan of Barrett's) wrote that he "agree[s] with my libertarian friend on this" (the friend in question is me). That is at least somewhat notable, because he and I don't agree on very many other constitutional law issues.

Earlier today, famed liberal Harvard Law School Professor Laurence Tribe tweeted that "[d]espite the great harm a Justice Coney Barrett will do, I predict she'll join a 7-2 Supreme Court majority in holding the individual mandate severable from the rest of the ACA, including the protection of preexisting conditions. But she'll join a 5-4 invalidation of the mandate." I think the majority in favor of severability might well be even bigger than 7-2, and that the vote on invalidation of the mandate is likely to be 6-3 (with Roberts joining the other conservatives in holding that the residual mandate is now unconstitutional because it can no longer be considered a tax). But Tribe and I agree on the likely outcomes of the two parts of the case.

In my earlier post, I also explained why it's highly unlikely that the plaintiffs will prevail on severability even if Barrett does vote in favor of their position. At least three of the other conservative justices signaled their hostility to that view in the recent robocall case, decided in June.

In my view a ruling striking down the residual individual mandate would be a significant decision enforcing constitutional limits on federal power. But it will have virtually no effect on the state of the ACA, given that the then-Republican controlled Congress rendered the mandate toothless in 2017. The fate of the ACA is what concerns the vast majority of other people interested in the case. ACA supporters should be happy to know that the law isn't actually in real peril - at least not from this case.

Co-blogger Jonathan Adler points out that Barrett might potentially recuse herself from participating in the ACA case, because of her earlier involvement in the moot court on the subject. Unlike lower-court judges, Supreme Court justices have near-total discretion over recusal issues. I am skeptical that the moot court creates bias or conflict of interest sufficient to necessitate recusal. But I'm not an expert on recusal ethics, and therefore could be missing something here. If Barrett does recuse, she would, of course, have even less impact on the outcome of the case than I currently expect!

As I have emphasized previously, the history of ACA-related litigation is littered with failed expert predictions, including some of my own. In this instance, however, the evidence of the justices' attitudes on severability is very strong, and the expert agreement on the subject cuts across ideological lines (which was not true in the debate over  most previous ACA cases).

There are plenty of legitimate reasons to complain about the rushed nature of this confirmation process (I share some of those concerns myself), and also plenty of room for disagreement about Barrett's jurisprudence (a topic I plan to write more about later this week). But she is unlikely to vote to strike down all of the ACA, and even more unlikely to have a decisive impact on the resolution of that issue.

UPDATE: I have made a few minor additions to this post.

NEXT: Interview with David Ignatius

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  1. Uh, the provision is in the Trump Tax Cut and not the ACA. So the zeroing out of the individual mandate is unconstitutional but severable from the larger Trump Tax in 2021 Democrats will get $300 billion of Monopoly money to play with fairly quickly. Thanks dum dum Trump judges!! 😉

    1. That makes no sense.

      1. So why haven’t Republicans passed a law that would make Medicare and Social Security unconstitutional?? Just pass a law that says only whites get SS and Medicare and then that is obviously unconstitutional and so both SS and Medicare are declared unconstitutional!! It’s almost too easy!!

        1. Ohh.... Kay.... Maybe stop the day drinking and postiong?

          1. The individual mandate has already passed constitutional how can a new law make an older law unconstitutional?? However, a new law can be declared the law at issue is the Trump Tax Cut and not the ACA.

  2. I suspect both Roberts and Barrett may address an issue the moot court apparently didn’t decide: standing.

    Anyone can give anyone else advice about how to live their life, and doing so doesn’t cause anyone any legal injury addressable by courts. Your mother in law can do that, and you can’t sue her just because you don’t like it. So can Congress. And Congress is as free as your mother in law to say you must do what they say. They can call it a mandate if they want. But as long as there’s no penalty, it’s just advice, and what they call it is no more than just puffery.

    It’s like the Ferengi Rules of Acquisition. Who would by a book called the Ferengi Suggestions of Acquisition? Calling them rules was a marketing ploy to get people to buy into them.

    Same here. If there’s no penalty or enforcement mechanism, there’s nothing for the courts to involve themselves with. Congress is free to decorate its statute books with whatever advice it cares to give you about how to live your life, and it’s no one else’s business if they do.

    1. And yet mountains of time and effort, much of it funded by taxpayers, are spent arguing over this bunch of nothing.

      The whole case is political posturing, supported by some lawyers out to prove an (idiotic) academic point and maybe make a name for themselves in conservative circles.

      A colossal waste.

      1. "A colossal waste."

        Like Obamacare itself.

        1. The Kushner family is making tens of millions of dollars thanks to Obamacare...I would think Trump supporters would like that just like they enjoy throwing money at Don Jr’s home wrecker girlfriend and paying for Parscale’s wife’s plastic surgery!! Keep donating those dollars!! Lol.

    2. ReaderY...I loved TNG. Deep Space Nine...not so much.

      1. 1. DS9
        2. TNG
        3. TOS
        4. Enterprise
        5. VOY

        Haven’t wasted my money on CBS All Access yet for Discovery and Picard though I’ve been tempted. New movies are kind of a different category all together.

        Enterprise beats Voyager mostly for nostalgia reasons. Because of the age I got into Trek, this was the first one to me that was new and exciting with real cliffhangers and waits between seasons. And it did some interesting things on occasion.

        1. 1. TOS
          2. TOS cartoon
          3. DS 9
          4. Scott Bakula show

          100. TNG

          1000. Voyager

          1. Ohh, good topic for the Open Thread!

            I'm with Commenter.

            1. Star Trek rankings are always a good topic. Especially if you do movies and people debate where Galaxy Quest belongs.

          2. That's an interesting lineup. Never actually seen the animated series beyond some funny GIFs of it.

    3. “It’s like the Ferengi Rules of Acquisition. Who would by a book called the Ferengi Suggestions of Acquisition? Calling them rules was a marketing ploy to get people to buy into them.“

      I love this reference so much.

      I also agree that standing is the real key here. No plaintiff is actually injured by the “mandate.” And really Alito should write this opinion (first time I’ve ever said that). It should be based on his opinion in Clapper and Spokeo with a chance to clawback Massachusetts v EPA.

    4. I disagree with those who say the mandate is irrelevant as a practical matter. When the ACA was enacted, its proponents said that the mandate, whether viewed as a tax or a penalty, was essential in the long run. As I understood it back then, it was believed that unless the incentive existed, a lot of younger adults in good health wouldn't bother to get insurance, and without having those people paying premiums, it was thought that the system would eventually be financially unworkable unless the federal government poured in a ton of money. That's how Romneycare works in Massachusetts. For the moment the incentive is probably unnecessary, because I suspect a lot of young healthy adults are scared of getting COVID-19 and want insurance to pay their medical costs if that happens. But I'm not sure the ACA will work in the long run if the incentive mechanism can't be reinstated. Although nobody's talking about it, I had assumed the Democrats would reinstate it if Biden wins and they take control of the Senate. But if SCOTUS rules that they can't do so, then it ain't gonna happen.

      1. They can levy a new tax on people who don’t have insurance.

        That would be constitutional.

      2. The Congress that initially passed the ACA thought an enforcible mandate was necessary. But the later Congress that repealed the enforcement mechanism obviously didn’t. Elections matter, and the change in policy was one of the consequences of electing a new Congress. It’s for voters, not for courts, to decide which policy is better.

        If Congress (and the Presidency) change yet again and a Biden administration and Democratic Congress choose to pass a similar enforcement mechanism, they would be very wise to call it a “tax” rather than a “penalty.” Doing so will prevent difficulties with the courts. And as Chief Justice Roberts pointed out, the change in name really won’t make a difference in terms of how the enforcement provision would actually affect the rights and obligations of ordinary citizens.

        If the elections give them the opportunity to make the ACA more muscular, they shoud take Chief Justice Roberts’ advice.

        1. Minor quibble...
          "...the later Congress that repealed the enforcement mechanism obviously didn’t."

          The later, conservative Congress repealed it not because they found it unnecessary for the success of the ACA but because they felt it was a critical component and thus repeal of it would topple the whole law and eventually lead to the ACA's death. Their campaign promises were to kill the ACA not improve it.

  3. I think this is a very likely result, and probably what should've happened initially. Sever the mandate, kill it, keep the rest of the law.

    Much was made initially how the mandate was critical and part of a "3-legged stool", and without it, the entire law and program would fail. But, Republicans reduced the fiscal impact of the mandate to zero...and the proverbial 3-legged stool still stood.

    Given this real world evidence, it's clear the mandate can be severed, and the rest of the program can still work.

    1. On Rush Limbaugh Trump admitted that he could have destroyed Obamacare with executive orders but he chose to make it as good as it could be. Trump didn’t mention that the Kushner family just happens to be heavily invested in the ACA Exchange subsidies...thank Jesus for Trump’s corruption!!!

  4. Just FYI: both Twitter and Facebook are censoring that NY Post article about Hunter Biden.

    Head over to the NY Post to read the info big tech wants to hide from you.

    (Sorry this is off topic. It needs to be posted everywhere because Twitter and Facebook are trying to censor it.)

    1. If you are going to vote for Trump because Hunter Biden convinced the Chinese to give him a billion dollars...then you were probably never going to vote for Biden because you believe he is part of a Satanic child sex trafficking ring.

      1. Cool points about whatever, bro.

        I just want everyone to know what Twitter and Facebook are trying to hide.

        1. Let me get this straight—you are still considering Biden even though you believe he is part of a Satanic child sex trafficking ring?? Wow.

    2. You mean that sack of lies?

      1. Sure, make your own judgments. Don’t let Twitter and Facebook decide for you.

        1. Omg, the Ukrainian that emailed Hunter Biden also had meetings with Republicans in Congress and officials in Trump’s State Department!?! You and the other Trump supporters are so sadz to be tricked by a con man.

      2. The picture of Hunter Biden, passed out with a crack pipe in his mouth doesn't lie.

        I am just glad the Russians or Chinese no longer have the opportunity to compromise Sleepy Joe. At least, not anymore with that picture.

        1. That picture would not have been very good blackmail material. Everyone already knows Hunter had a crack problem.

          1. Trump’s best buddy Mr Pillow was also a crackhead so Hunter is in good company!

            1. Or so he says. I tend to be a bit skeptical of the rock bottom Christian redemption stories, and his is a doozy.

              1. My Pillow seems like the a cokehead’s invention.

          2. I probably follow some biased sources on twitter and in the media, but it seemed like a lot people really appreciated and connected with Biden saying he was proud of his son for overcoming a drug problem.

            The answer may have ultimately been prepped in response to anticipated attacks, but I think he meant it. (And not in the ACB “I’m a selfless martyr for trying to get on SCOTUS” way).

  5. Deductible went from $500 to $7000 the year of enactment. Obama took my insurance and gave it to his scumbag Democrat constituents. I had no insurance anymore, except for catastrophic care. Obama stole my insurance.

    1. And then Trump perpetuated Obamacare to help out the Kushner family!?! No matter who wins you lose...tough break.

      1. I support a payment of $3500 a year into a health account from birth. Patient does his own prior authorization. Can you imagine the treatment you get when you walk into a doctor's office waving your own check book? Die healthy at 90, the $2 million go to the heirs, not to the government.

        1. All we would need to save Medicare and SS is giving every baby an account with $5k and letting it grow tax free until 65. So the S&P has averaged 10% returns for almost 100 years! So adjusted for inflation that’s $300k every American has at retirement in 65 years. Right now every year 4 million babies are born in America so that is a $20 billion a year program which nothing in our government’s budget. Then on the back end have so around a million 65 year olds are too wealthy to get it so that yields $300 billion in taxes every year in today’s dollars. And then increase the Medicare premium $200/month for those people. And then when they die take 50% of what’s left.

          1. I prefer the simplicity of the Health Savings Account. Naturally, no one supports it.

            1. Keep in mind that big corporations in America “self insure” what they offer employees technically isn’t “insurance”. So they could simply give every employee a credit card specifically for health care expenses...but they still hire what we refer to as a “health insurance company” to run their employees’ health care program. So Bezos and Gates believe Aetna and Humana add value to their respective company’s bottom line because they hire them and make them Fortune 500 companies in their own right.

  6. She testified today that it would be impossible to predict the ideological leaning of her decisions as a justice.

    Why not refuse the answer the question rather than lying?

    Other than lack of character, and a fierce drive to become a justice and try to reverse the tide of American progress in the service of backwardness, superstition, and bigotry, I mean.

    1. Re: RALK @ 7:43 pm

      "Why not refuse the answer the question rather than lying?"

      Says the foamer who provides not a wit of evidence / justification for their statement.

      And learn how to construct a sentence.

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