CLAIM: Confirming Justice Amy Coney Barrett to the Supreme Court would mean overturning the Affordable Care Act, a.k.a. Obamacare.
VERDICT: MOSTLY FALSE. While is is possible, it is very unlikely, given the nature of the case.
Democrats repeatedly claimed throughout the first day of Judge Amy Coney Barrett’s Supreme Court confirmation hearing that confirming her would mean overturning Obamacare.
They referred to a current case, California v. Texas, in which the Fifth Circuit affirmed a district court’s decision that the individual mandate to buy health insurance was unconstitutional, since President Donald Trump had signed tax cuts into law in 2017 that set the mandate “tax” at zero.
Obamacare had only been upheld in NFIB v. Sebelius (2012) on Chief Justice John Roberts’s decision that the mandate was constitutional as a tax, but unconstitutional otherwise.
That rendered the mandate unconstitutional, the Fifth Circuit held, once the mandate was reduced to $0: it was no longer a tax.
The Fifth Circuit disagreed, however, with the lower court’s finding that the individual mandate was so crucial to Obamacare — so “inseverable” — that its loss made the whole Affordable Care Act unconstitutional. It remanded the issue back to the district court for more careful, detailed analysis of “severability.”
The U.S. Department of Justice, one of the parties to the case, has argued that the individual mandate is, in fact, not “severable” from the law as a whole and that it should therefore be struck down.
The Supreme Court will hear the highly anticipated case on November 10, and Democrats claim that if Barrett is on the Court, she will end Obamacare — especially because she has criticized the manner in which Roberts upheld it (though not the act itself).
Democrats also point to President Donald Trump’s steadfast determination to overturn Obamacare (he also wants to replace it).
There are a number of possibilities in California v. Texas, but it is highly unlikely that the Supreme Court will invalidate all of Obamacare.
One reason is that several of the current justices are very skittish when it comes to the issue of severability.
“The ACA, most likely, will not be struck down,” Jonathan Turley told Fox News on Monday, saying that Chief Justice Roberts, as well as Justice Brett Kavanaugh, would be likely to argue that Obamacare could in fact survive without the individual mandate.
Moreover, as one letter submitted on behalf of Barrett argued, her confirmation would likely have no effect on the outcome.
Law prof explains why ACB’s confirmation or non-confirmation will have no effect on SCOTUS’s ACA ruling. https://t.co/JfpIFlCGH1
— Mollie (@MZHemingway) October 12, 2020
If Barrett is not confirmed, and the remaining justices vote the same way they did in the 2012 case (or the way their predecessors did), then the Court would be deadlocked 4-4. That would simply leave the Fifth Circuit’s decision in place. The individual mandate would be unconstitutional, but the district court would have to start the severability analysis over.
That could mean Obamacare would be overturned in the future — but only after much more litigation.
The only way Barrett could make a substantive difference is if she voted to uphold Obamacare, joining the liberal justices.
If one of the conservatives defected — joining Chief Justice Roberts — on the issue of severability, then Barrett would be in the minority anyway.
Interestingly, not even the hard-core libertarians at the Cato Institute — who opposed Obamacare when it was still Romneycare — want the whole law invalidated.
Cato’s Ilya Shapiro has argued in an amicus brief that the Court should invalidate parts of Obamacare, but not the whole.
In this case, Shapiro notes, that would help the specific plaintiffs — the individuals and states who sued — without affecting the system as a whole.
Shapiro also pointed out to Breitbart News that when Congress set the mandate at $0 in 2017, it could have (theoretically) overturned Obamacare itself.
The fact that Congress essentially killed the mandate without repealing Obamacare is a sign that Congress considered it severable from the law.
That kind of congressional intent is certainly something that a conservative jurist like Amy Coney Barrett would take into account before allowing the Court to make sweeping changes.
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.