CLAIM: Judge Amy Coney Barrett “said she wants to get rid of the Affordable Care Act.”
Former Vice President Joe Biden told reporters that Judge Amy Coney Barrett, now going through confirmation hearings for the Supreme Court vacated by the late Justice Ruth Bader Ginsburg, “said she wants to get rid of the Affordable Care Act.”
That is false. Barrett has never stated an opinion on the law, and her judicial philosophy is that judges are not lawmakers.
What she has done is criticize Chief Justice John Roberts’s decision in NFIB v. Sebelius, in which he rewrote the statute to save it.
In a law review article in 2017, she wrote:
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.
She also quoted her former mentor, the late Justice Antonin Scalia, who dissented:
Justice Scalia, criticizing the majority’s construction of the Affordable Care Act in both NFIB v. Sebelius and King v. Burwell, protested that the statute known as Obamacare should be renamed “SCOTUScare” in honor of the Court’s willingness to “rewrite” the statute in order to keep it afloat.66 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. 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.
Barrett never said that the statute should be overturned; she criticized the method by which it was upheld. Biden’s claim is false.
(Biden also appeared to forget Mitt Romney’s name, referring to him as “the Senator, who is a Mormon — the governor.”)
Update: The Hill agrees: “The challenge Democrats face is that while they claim Barrett will overturn ObamaCare, the judge has never explicitly said she would do so, though she has dropped big hints about how she’s likely to rule.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His newest e-book is The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.