Liberals misread Barrett on Obamacare
Law can work without insurance mandate
In the presidential debate, Joe Biden portrayed the nomination of Amy Coney Barrett as part of a plot by Donald Trump to put an end to the Affordable Care Act, aka Obamacare.
The Supreme Court has oral arguments scheduled for Nov. 10 in a case challenging Obamacare’s constitutionality. Republicans are marching double-time to get Barrett confirmed before the election, which would enable her to participate in the Obamacare case.
According to Democrats, a vote to confirm Barrett is a vote to repeal Obamacare and leave millions of Americans without health insurance.
Obamacare may well survive
In reality, it is highly unlikely that the conservatives on the court will decide to hold that Obamacare, as currently constituted, is unconstitutional, including Barrett if she is confirmed. In fact, it is more likely that the court accepted the case to put an end to the legal cloud over the program resulting from lower court decisions and actions.
In the debate, Biden materially misrepresented what Barrett has written about Obamacare. She has not expressed an opinion about the constitutionality of Obamacare as currently constituted.
In a book review, Barrett did criticize the 2012 Supreme Court decision upholding the constitutionality of Obamacare as it existed at that time.
Before the court were two fundamental issues. Did Congress have the authority to require people to purchase health insurance? And if not, could the unconstitutional mandate be severed from the rest of Obamacare, or was it so intrinsic to the overall scheme that the entire law had to be struck down?
Four justices — the conservatives and swingman Anthony Kennedy — found that the mandate was unconstitutional and so intrinsic to the scheme that the entire law had to be scrapped. Four justices — the liberals — found that Congress had the authority to impose the mandate, so no problem.
Chief Justice John Roberts found that the penalty for not complying with the mandate was actually a tax and within Congress’ taxing authority. And thus Obamacare was spared.
In the Notre Dame article, Barrett criticized Roberts for twisting the statute’s text and obvious meaning to rescue the program. She did so to illustrate the difference between Roberts’ jurisprudence of seeking interpretations that uphold government action, to that of originalists and textualists who stick to original or plain meaning and let the chips fall where they may.
The status of Obamacare is materially different today than it was in 2012. And the principles of originalism and textualism dictate a different result.
Since 2012, Trump and congressional Republicans have, as a practical matter, eliminated the mandate that people purchase health insurance by reducing the penalty to zero.
If the penalty is zero, hard to argue any longer that it is a tax. And if it’s not a tax, then the two questions the court considered in 2012 return.
Chances are that conservatives on the court will still find that Congress doesn’t have the authority to order people to buy particular products, such as health insurance. So, the toothless mandate is unconstitutional.
But the question of severability is fundamentally different.
Basically, the court looks at two things: Is the mandate intrinsic to the overall program? And would Congress have enacted the program without it?
In 2012, it was possible to conclude that the mandate was intrinsic to the overall program and that Congress wouldn’t have enacted Obamacare without it. In 2020, it is impossible to fairly reach those conclusions.
The law exists as Congress has chosen to amend it. Effectively no mandate. But everything else in place: the exchanges, the community rating, the subsidies. Impossible to argue that what Congress has chosen to create is contrary to congressional intent.
She’s not an automatic vote
And Obamacare functions. Policies are available. People buy them. So, it is impossible to argue that the program can’t work without the mandate.
If the court decides that the mandate is unconstitutional but severable, that is not without consequences. Biden says he wants to restore the penalties for not buying health insurance. Such a decision would preclude that.
But Obamacare as it exists today would be undisturbed.
The liberal assumption that Barrett is an automatic vote to strike down Obamacare entirely is revealing, in an unintended way. Legal conservatives don’t want the judiciary to be just another political branch of government. Liberals have a hard time understanding such a way of thinking.