Carney: Amy Coney Barrett Is Not a Death Sentence for Obamacare

Senate Democrats on Monday warned that if Judge Amy Coney Barrett is confirmed to the Supreme Court, it would mean the death of Americans on Obamacare’s protection of Americans with pre-existing medical conditions.

This is simply fear-mongering. It’s highly unlikely that Barrett would vote to strike down Obamacare. Even if she did, she likely would not have enough votes to carry the court on this issue.

The Democrats are attempting to politicize Barrett’s confirmation hearing by linking it to Obamacare and the law’s protections for Americans with pre-existing medical conditions. Those are very popular, and Democrats hope that focusing the hearings on them—and claiming they are threatened by President Donald Trump’s Supreme Court nominee—will turn voters away from Republican candidates in November.

The thin thread on which the Democrats have hung their attack is a case scheduled to come before the Supreme Court on November 10th. But despite all the attention being paid to pre-existing conditions protections, that case does not directly concern those protections at all. Instead, it centers on the question of the individual mandate.

Back in 2012, the Supreme Court considered whether Congress has the constitutional power to order Americans to purchase health insurance—what became known as the individual mandate. Five Republican appointees said that the mandate could not pass constitutional muster under either the commerce clause or the necessary and proper clause, two provisions of the constitution frequently relied on when Congress passes laws that would otherwise appear to be outside the scope of its authority.

That might have spelled the death of the individual mandate—and perhaps Obamacare altogether—if not for the defection of one of those five justices.  Chief Justice John Roberts sided with the four Democratic appointees in upholding the mandate on the grounds that it was permitted by Congress’s power to levy taxes. The individual mandate requirement was enforced by means of a fine against anyone not purchasing insurance. Justice Roberts’ opinion construed this fine as a tax—and since Congress’s power to tax is very broad, that rendered the mandate constitutional.

This prompted howls of outrage from conservative legal scholars and politicians. The mandate’s enforcement mechanism was not a tax, it was a command backed up by a fine, they argued. Many felt that Chief Justice Roberts had betrayed his judicial principals by reaching so far to uphold the mandate.

In the 2017 tax reforms, Congress eliminated the individual mandate “tax” by reducing the fine to zero. But the mandate remains on the books. You are still required to purchase health insurance—there’s just nothing the government can do to you if you ignore the command.

In the case coming before the Supreme Court, Texas argues that since there is no longer a tax attached to the mandate, it is no longer supported by Congress’s authority to levy taxes. It’s now just an extra-constitutional command. That, however, is not all. Texas argues that since Congress did not provide a severance clause in the Affordable Care Act—a provision saying that if one part of the law is unconstitutional the rest can still stand—the entire thing should be struck down.

When the Democrats say that Judge Barrett is a threat to Obamacare, what they are really claiming is that she’d side with Texas on this question. While that’s not beyond the realm of possibility, the evidence indicates that it is not likely.

What seems more likely is that Judge Barrett will decide that the individual mandate is indeed unconstitutional but that Congress’s decision to reduce the tax to zero while keeping the rest of the Obamacare edifice in place indicates that the broader law can stand even while the mandate falls. In other words, Obamacare can survive.

Why is that most likely to be Judge Barrett’s view? She has not expressed a view on the case, so instead we have to look to others who share her outlook on the law for evidence. In several recent cases, the conservatives justices on the Supreme Court have decided that the way to remedy unconstitutional provisions in complex recent laws was not to strike down the entire thing but to sever the bad provision.

That’s what the court did in the recent Consumer Finance Protection Bureau case. There the law stated that the CFPB’s director could not be removed before the end of a five-year term except for cause. The court ruled 5-4 that this was unconstituional and that the director had to be removable at-will. Some had asked the court to strike down the entire bureau or all of the actions taken by the director—something the court refused to do. The four dissenting votes were from liberal justices who would have upheld the law.

In short, there was not a single vote to strike down any other portions of the law on the grounds that they were not severable. Most of the conservative justices—and all of the liberal justices—supported the traditional view of leaving the rest of the law alone and striking down only the unconstitutional provision in order to minimize the disruption.

In Barr v. American Ass. of Political Consultants, Justice Brett Kavanaugh wrote a 7-2 majority opinion holding that the unconstitutional exception for government debt collectors to the federal ban on cellphone robocalls could be severed from the Telephone Consumer Protection Act. Justice Kavanaugh argued that the court’s precedent’s amount to a “strong presumption of severability.”

In both cases, Justice Neil Gorsuch and Justice Clarence Thomas filed concurring opinions that went even further in the direction of not overturning the broader law when a provision is found to be unconstitutional. They urged the court to simply refuse to enforce an unconstitutional provision of the law without getting to the problem of severability. So arguably the most conservative voices on the court also would, in most cases, also not strike down laws on the grounds of. lack of severability.

When applied to the new Texas, it seems likely that there would be no votes in favor of striking down the entire law if the court found the now zeroed-out mandate is unconstitutional. If Barrett were to take sides against the other conservative justices, she would likely be the only vote in favor of overturning Obamacare altogether.

There are at least two entries on the Democrat side of the ledger. First, Judge Barrett has been critical of Robert’s 2012 decision, saying it stretched the law too far in pursuit of deference to Congress. But, of course, it’s entirely consistent to hold that the mandate is unconstitutional, but the rest of the law survives.

Second, back in the 2012 case, Justice Anthony Kennedy wrote a dissenting opinion—joined by Justices Scalia, Thomas, and Alito—that they would have struck down the entire Affordable Care Act because the individual mandate—along with the expansion of Medicaid—was central to the basic structure of the law.

“In our view, both these central provisions of the Act—the Individual Mandate and Medicaid Expansion—are invalid. It follows, as some of the parties urge, that all other provisions of the Act must fall as well,” Kennedy wrote.

This position, however, is no longer persuasive. In 2017, Congress zeroed out the fine for the mandate but left the rest of Obamacare in place. And so it has been for nearly two years. That’s powerful evidence that the law does not depend on the mandate.

Nothing is certain, of course. As John Robert’s vote upholding Obamacare in 2012 showed, Supreme Court justices can rule in unpredictable and creative ways.

But a fair assessment would indicate that Barrett is not the lethal threat to Obamacare that Democrats decried on Monday.