Democrats seek to turn Supreme Court fight into referendum on Obamacare

September 27, 2020

Presidential contender Joe Biden and his Democratic allies are seeking to turn President Donald Trump's nomination of Judge Amy Coney Barrett to the Supreme Court into a referendum on the future of American health care.

Trump nominated the Indiana-based federal appeals court judge to the high court on Saturday night, praising her credentials and noting that future cases would decide the "survival of our Second Amendment, our religious liberty, our public safety."

Left unsaid at Barrett's nomination was that the court will hear a case challenging the legality of the Affordable Care Act, former President Barack Obama's signature health-care overhaul, as soon as Nov. 10.

Republican-led states backed by the Trump administration have asked the court to strike down the law, which would likely leave tens of millions of Americans without coverage.

Trump has repeatedly said that he would release a replacement plan but has not yet unveiled one. On Sunday, he repeated the pledge in a post on Twitter, saying that it would be a "big WIN for the USA!"

Barrett's confirmation to the court in time to hear the case would give the panel a 6-3 conservative majority and increase the odds that the law gets struck down, though that outcome would still be far from certain.

Barrett's past legal rulings and writings suggest she will be among the court's most conservative members. Her replacement of the late Justice Ruth Bader Ginsburg is expected to transform the court more than any nomination since Justice Clarence Thomas succeeded Thurgood Marshall in 1991.

In a slew of statements released after Barrett's confirmation became official, Biden and his fellow Democrats made it clear that, with just under 40 days left to go before Election Day, they wanted the fight to be about health care.

Sen. Chuck Schumer, D-N.Y., the minority leader, said Americans should "make no mistake": "A vote by any Senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions."

"By nominating Judge Amy Coney Barrett to the Supreme Court, President Trump has once again put Americans' healthcare in the crosshairs," Schumer said.

House Speaker Nancy Pelosi of California declared that Barrett's "nomination threatens the destruction of life-saving protections for 135 million Americans with pre-existing conditions together with every other benefit and protection of the Affordable Care Act."

Biden released a six paragraph message nearly entirely focused on Obamacare.

"If President Trump has his way, complications from COVID-19, like lung scarring and heart damage, could become the next deniable pre-existing condition," Biden said. "The American people know the U.S. Supreme Court decisions affect their everyday lives."

Zeroing in on health care echoes the Democrats' successful strategy during the 2018 congressional midterm elections but marks a departure from previous Supreme Court confirmation battles. The stakes of the health-care fight have only increased as a result of the Covid-19 pandemic, which has increased the demand for care at the same time that it has left millions more Americans struggling to afford it.

The fights over Justices Neil Gorsuch and Brett Kavanaugh were both at first marked by fights over procedure and allegations that the nominations had violated Washington norms. Kavanaugh's confirmation eventually became more personal, after allegations of decades-old sexual misconduct surfaced, forcing the judge to defend his character.

This time around, Democrats are staying far away from the personal details of Barrett's life. The judge, who has seven kids, including two who were adopted, would be the first female Supreme Court justice with school-aged children.

Instead, party members have pointed to Barrett's past academic writings and statements criticizing the health-care law.

In particular, they have cited a 2017 book review in which Barrett attacked Chief Justice John Robert's reasoning in the 2012 Supreme Court case upholding Obamacare under Congress's power to tax.

Roberts, she wrote in the paper, "pushed the Affordable Care Act beyond its plausible meaning to save the statute."

Barrett added in the article that Justice Antonin Scalia, the conservative hero for whom she worked as a clerk early in her career, derisively called the law "SCOTUSCare."

"For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fair-minded application of the rule of law, which means going where the law leads," she wrote. "By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result."

Those comments are particularly significant given Barrett's own identification with Scalia's originalist view of the law, which puts an emphasis on a close reading of a statute's text. At her nomination on Saturday, Barrett said of Scalia, who died in 2016, that "his judicial philosophy is mine too."

Carrie Severino, president of the conservative Judicial Crisis Network, which is supporting Barrett's confirmation, downplayed Barrett's comments on Twitter on Saturday, saying that the "one quote Democrats and their allies are using is from a book review, not a ruling, not a case she heard."

"No one is attacking pre-existing conditions, certainly not Judge Barrett, a mother of seven, one of whom has special needs," Severino wrote.

To be sure, while Democrats have said that Barrett's confirmation would amount to a "repeal" of the Affordable Care Act, that outcome is not guaranteed.

The law has twice withstood Supreme Court scrutiny, and experts have said that the legal case presented in the dispute being argued Nov. 10 is weaker than the ones that have come before.

The case hinges on whether the law's individual mandate provision became unlawful when Congress set the penalty to $0 in 2017, given that the court had previously upheld the mandate under Congress's power to tax.

Even if the court rules that it is not lawful, it will then have to decide whether the rest of the law must be struck down.

That question turns on the justices' views on a doctrine known as "severability," which generally does not divide as starkly along the same partisan lines as other questions that have been raised in connection to Obamacare.

For instance, in a case last term, Kavanaugh, Roberts and Justice Samuel Alito, conservatives, all agreed to sever a portion of a law related to robocalls, with Kavanaugh writing that the court "presumes that an unconstitutional provision in a law is severable.

That opinion prompted a great deal of reading of the tea leaves among close court watchers because of its potential implications for the Obamacare case.

The court's four liberal justices — Ginsburg and Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer — also agreed that the law was severable.

Whether the court will actually end Obamacare will likely not be known until months into the next presidential term. A decision is expected by June of 2021.

CNBC

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