Amy Coney Barrett unfortunately is now a Supreme Court justice and will be in the majority on many horrific decisions in years to come. And she will be one of three Trump-appointed justices to hear oral arguments on Nov. 10 in a case that will decide the fate of the Affordable Care Act which could cause millions of Americans to lose their health coverage in the midst of the pandemic.
Trump has made no secret of his desired result regarding the ACA: “I hope that they end it.” AG William Barr’s DOJ has supported the case before the Supreme Court to end Obamacare.
If you listen to some cable TV commentators you’d get the impression that the end is near for the ACA. What often gets glossed over is that any SCOTUS ruling is unlikely before June 2021, and that the case can be rendered moot if Democratic lawmakers act before then.
Of course, the big caveat is that Democrats must regain control of the Senate and retain their House majority.
The case before SCOTUS is now known as California v. Texas, and in the lower courts it was called Texas v. United States. The central issue is whether the 2017 tax cut law — which reduced the financial penalty for failing to obtain health insurance to $0 — invalidates the entire ACA.
Back in 2012, the Supreme Court by a narrow 5-4 margin — with Chief Justice John Roberts casting the swing vote — ruled that the ACA’s individual mandate qualified as a tax and was thereby constitutional under the powers granted to Congress.
Back in 2017, before she was nominated to a federal appeals court, Barrett wrote an essay in a journal of the Notre Dame Law School where she was a professor that she disagreed with Roberts’ majority opinion upholding the ACA. She claimed the Supreme Court “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” So we know where she stands.
The case before the Supreme Court now stems from a lawsuit filed by the attorneys general of Texas and 19 other states. The lawsuit argued that because the 2017 tax law reduced the penalty to $0, the individual mandate to obtain health insurance could no longer be considered a tax.
A federal appeals court struck down the individual mandate. The Republicans who filed the lawsuit then argued that the mandate is unseverable from the rest of the ACA, and as a result the entire law should be invalidated.
Many constitutional scholars have derided this argument. An amicus brief written by four health law experts argued that the ACA should survive even if the individual mandate is struck down. They wrote that “Any other conclusion would be a judicial usurpation of Congress’ lawmaking power.”
One of the health care experts who filed the brief, Nicholas Bagley, told Mother Jones magazine that the lawsuit is a “long-shot.” But he noted that with the new 6-3 conservative supermajority on the court there was still “a small chance of a very bad outcome.”
But then he made the key point in the Mother Jones interview that the cable TV pundits never mention.
Could the whole problem be resolved by raising the penalty for not having insurance to $1?
Definitely. We could repeal the offending language, or actually add a severability clause [stating that if one part of the law is invalidated, the rest of the law survives]. It would take one sentence of text, and it would get rid of the lawsuit immediately.
And that’s why reports of the demise of the ACA are grossly exaggerated.
Both the ACA and the Trump tax cuts could only be passed by the Senate using the reconciliation process reserved for budgetary legislation that requires only a simple majority vote. The 2017 tax cuts passed by a vote of 51-48.
Thus any changes would not be subject to a filibuster and would need only a simple majority to pass. So if Joe Biden is president, a Democratic Congress could reimpose a marginal tax penalty for the individual mandate and render the case before SCOTUS moot.
It would also force Republican senators to cast a vote — and a “No” vote would essentially mean that they support doing away with the ACA during the pandemic — that could come back to haunt those up for election in 2022.
And if Amy “Covid” Barrett and the other conservative ideologues on the Supreme Court still went ahead and invalidated the ACA, the ruling would likely come in June 2021. And that would be around the same time that Biden’s proposed commission of constitutional scholars on judicial reforms would be due to make their report.
If this conservative Supreme Court actually declared the ACA unconstitutional — and in the process put at risk the health coverage of millions of Americans — it would create a tidal wave of support for expanding the court.
And if Democrats were really bold they could announce that if the ACA is thrown out, they would turn to another option whose constitutionality has not yet been questioned — open up Medicare to every American