As a presidential candidate, Donald Trump promised to appoint nominees who would “do the right thing unlike Bush’s appointee John Roberts on ObamaCare.” Chief Justice John Roberts famously voted to preserve most of the Affordable Care Act (the ACA) in NFIB v. Sebelius (2012), and later rejected arguments in another partisan lawsuit, King v. Burwell (2015), seeking to undercut the law.
If I win the presidency, my judicial appointments will do the right thing unlike Bush's appointee John Roberts on ObamaCare.— Donald J. Trump (@realDonaldTrump) June 26, 2015
Like Trump, Supreme Court nominee Amy Coney Barrett is a critic of Roberts’s decisions upholding most of Obamacare. In a book review published in 2017, for example, Barrett denounced Roberts’s opinions in both NFIB and King, claiming the chief justice “pushed the Affordable Care Act beyond its plausible meaning to save the statute” in the first decision.
If Obamacare is struck down, roughly 20 million Americans will lose health coverage — a likely conservative estimate, as it does not count many people who have lost their employer-provided health insurance during the Covid-19 pandemic.
Questions over Obamacare have taken a starring role in Barrett’s confirmation hearing. Democratic senators have repeatedly brought up Barrett’s objections to the NFIB and King decisions and frequently referred to California v. Texas, a third case attacking Obamacare that the Supreme Court will hear in November.
Barrett didn’t deny criticizing the NFIB and King opinions, but suggested that perhaps she didn’t engage in particularly rigorous analysis when she attacked those two decisions.
After Sen. Amy Klobuchar (D-MN) asked Barrett about a 2015 NPR interview in which the future judge claimed the dissenting justices had the “better of the legal argument” in King, Barrett said she was merely a law professor when she made that statement. “A professor professes and can opine,” Barrett claimed, adding that she did not go through the “judicial decision-making process” when she determined that King was wrongly decided.
In any event, Barrett’s prior opposition to Obamacare raises two distinct questions. One is how she would rule in Texas — the case currently before the Supreme Court. As Barrett repeatedly noted throughout her testimony, the specific legal issues in Texas are distinct from those in NFIB and King, and she indicated she might favor a particular rationale on “severability” that could preserve Obamacare. So it is entirely possible she would reject the (extraordinarily weak) arguments against the health care law raised in the Texas case.
The other question is whether Barrett would rule against Obamacare in a future case. NFIB was a 5-4 decision (at least on the question of whether to uphold most of the law), with the late Justice Ruth Bader Ginsburg in the majority. And King was a 6-3 decision, with retired Justice Anthony Kennedy and Ginsburg in the majority. So it is far from clear that the justices will arrive at the same result if similar cases reach a newly constituted Court in the future.
Barrett’s record, in other words, suggests she is a long-term threat to the viability of the ACA — even though the Court may very well still reject the unusually shaky legal arguments in Texas.
The plaintiffs’ arguments in Texas would be laughable — if lives weren’t at stake
NFIB held that the ACA’s “individual mandate” — a provision requiring most Americans to pay a penalty tax if they did not have health insurance — was a valid exercise of Congress’s power to levy taxes. King held that a poorly drafted provision of Obamacare should not be read to effectively destroy many states’ individual health insurance markets.
Texas, by contrast, asks the Supreme Court to strike down the entire ACA because of Congress’s decision to repeal the individual mandate in 2017.
The plaintiffs’ arguments go like this: The tax law Trump signed in 2017 eliminated the individual mandate by reducing the amount of the tax owed by people who did not have insurance to zero dollars. But the amended law still contains language providing that these individuals “shall” carry insurance — there’s just no consequence for individuals who don’t.
As NFIB held that the fully functional mandate is a valid exercise of Congress’s power to tax, the plaintiffs in Texas argue that a zeroed-out mandate is unconstitutional because a zero-dollar tax is no tax at all. That’s a plausible legal argument, though not an entirely airtight one. But it might be unclear why anyone should care: Does it matter if a provision of law that does nothing at all is constitutional or not?
The answer can be summarized in one word: “severability.” When a court strikes down a provision of law that is part of a broader statute, it often must ask whether the rest of the statute can stand without the invalid provision. Yet, as the Supreme Court held in Murphy v. NCAA (2018), courts should preserve as much of the statute as possible.
“In order for other ... provisions to fall,” Justice Samuel Alito wrote for the Court in Murphy, “it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”
No reasonable judge could conclude that additional provisions of the ACA should fall, even if the zeroed-out mandate is unconstitutional. In 2017, after a long debate over whether to repeal the ACA in full, Congress decided to repeal just one provision — the individual mandate. We know, in other words, that Congress would have preferred for the mandate to fall and the rest of the statute to stand because Congress voted to repeal the mandate and let the rest of the statute stand.
In any event, there is some evidence that even Barrett, who criticized the Court’s decisions in NFIB and King, may not be convinced by the Texas plaintiffs’ weak legal reasoning.
Shortly before her Supreme Court nomination, Barrett served as a judge in a moot court case — a kind of exhibition game for lawyers wherein advocates present legal arguments before a panel of judges — involving the same arguments as the Texas case.
Though Barrett emphasized that her vote in a fake court hearing does not necessarily predict how she would rule if confirmed to the Supreme Court, she revealed during her confirmation hearing that she determined the zeroed-out mandate is “unconstitutional but severable” in that moot court exercise.
So, at least in the context of a pretend court hearing, Barrett voted to preserve all the parts of Obamacare that actually do something.
Barrett is still a threat to Obamacare in a future case
One thing that distinguishes Texas from NFIB and King: Even many conservative opponents of Obamacare view the plaintiffs’ legal arguments in Texas as absurd.
Yuval Levin, a prominent conservative policy wonk, wrote in the National Review that the Texas lawsuit “doesn’t even merit being called silly. It’s ridiculous.” Jonathan Adler, a conservative law professor and a leading evangelist for the plaintiffs’ arguments in King, labeled many of the Texas plaintiffs’ arguments “implausible,” “hard to justify,” and “surprisingly weak.” The Wall Street Journal’s editorial board labeled this lawsuit the “Texas Obamacare Blunder.”
But when NFIB and King reached the Supreme Court, the plaintiffs’ arguments in those cases were also widely viewed as weak — even as they were touted by many conservative legal elites and elected Republicans. On the eve of Supreme Court arguments in NFIB, for example, an American Bar Association poll of Supreme Court experts found that 85 percent believed the Affordable Care Act would be upheld, and another 9 percent believed the Court would dismiss the case for lack of jurisdiction.
And yet, five justices accepted most of the plaintiffs’ legal arguments in NFIB, and four of them voted to repeal the Affordable Care Act in its entirety.
As Yale Law School’s Jack Balkin has written, judges and justices are frequently influenced by political movements that are backed by the leaders of those judges’ political party. Fringe legal arguments “move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument,” Balkin wrote in a 2012 article explaining why so many Republican judges and justices embraced arguments in NFIB that were previously viewed as meritless.
This process of moving fringe arguments “from off the wall to on the wall,” moreover, can move quite quickly when a political party backs such an argument. “When establishment politicians — who, after all, have to stand for election and don’t want to be thought out-of-touch to their constituents — get behind a constitutional argument,” Balkin writes, “they often help move it forward quickly.”
Barrett’s record suggests that she is susceptible to this process. However she votes in the Texas case, after all, her record shows that she agreed with the Republican Party’s position in both NFIB and King.
Like many other conservative legal experts, Barrett may very well reject the Texas attack on Obamacare. But Republicans have hardly given up their quest to kill the Affordable Care Act.
If Barrett is confirmed, Republicans will control six of the nine seats on the Supreme Court. It is all but inevitable that Republican lawyers will bring another lawsuit attacking Obamacare. And if the party’s leaders and intellectuals give that suit their full backing, Barrett may join them.