CLAIM: Sen. Kamala Harris (D-CA) said “the Affordable Care Act and its protections hinge on … the outcome of this hearing.”
VERDICT: MOSTLY FALSE. Barrett’s confirmation would likely not result in Obamacare being overturned, at least not now.
Sen. Harris, the Democratic Party nominee for Vice President, used the bulk of her time in Judge Amy Coney Barrett’s confirmation hearing on Tuesday to accuse the judge of preparing to overturn Obamacare in upcoming litigation.
As Breitbart News explained in a recent fact check, it is unlikely Barrett could overturn Obamacare soon even if she wanted to:
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.
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.
It is theoretically possible that Barrett could vote to overturn Obamacare, but it would likely be in a new, different case entirely.
Harris also falsely claimed that Barrett wanted to overturn Obamacare. As Breitbart News explained in another fact check, Barrett has never expressed a view on the substance of the law, or the policy.
She merely criticized the judicial reasoning used by Chief Justice John Roberts in upholding the statute by effectively rewriting it to make the individual mandate a tax instead of a penalty:
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.
The Hill agreed with Breitbart News’ analysis: “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.”
In addition, Harris made the false claim that 100 million Americans have pre-existing conditions and depend on Obamacare. As the Wall Street Journal explained last month, Harris overestimated that number absurdly:
Joe Biden claimed at Tuesday’s debate that “100 million people who have pre-existing conditions” will lose insurance if the Trump Administration wins an Affordable Care Act case at the Supreme Court. Democrats have terrified voters with this fiction for years …
The question is not how many Americans have a health condition, but how many Americans buying insurance in the individual insurance market have a condition that makes them difficult to insure at prices they can pay. Keep in mind that the Affordable Care Act set up a subsidized transitional plan for anyone with pre-existing conditions denied insurance in the individual market. Peak enrollment: about 115,000 in 2013.
The White House in an executive order last week noted that, by the Obama Administration’s own report, a mere 2.7% of an estimated roughly 130 million people with pre-existing conditions gained access to health insurance through the Affordable Care Act.
Harris’s entire presentation was scripted, and she read from notes as she sat in her Senate office. Barrett, notably, did not use notes at all in an entire day of testimony.
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.