During the confirmation hearings for President Trump’s third Supreme Court nominee, Amy Coney Barrett, Democrats repeatedly warned that Barrett would destroy the Affordable Care Act, also known as Obamacare. They brought in witnesses to testify about how great Obamacare was. Well, the Supreme Court heard arguments on the Obamacare case on Tuesday, and it seems unlikely the Court will strike down the health care law.
Chief Justice John Roberts and Justice Brett Kavanaugh appeared unwilling to strike down the entire law, although they agreed with the other justices that the now-toothless individual mandate forcing people to purchase health insurance was unconstitutional, the Associated Press reported.
The Court’s three liberal justices will likely vote to uphold Obamacare in its entirety and would likely form a majority by joining a decision to cut away only the mandate, which Chief Justice John Roberts upheld in 2012 by redefining it as a tax, a tax which Congress zeroed out in 2017.
“Would Congress want the rest of the law to survive if the unconstitutional provision were severed? Here, Congress left the rest of the law intact,” Roberts said during oral arguments in California v. Texas. “That seems to be a compelling answer to the question.”
Kavanaugh said the Court’s recent decisions on the matter suggest “that the proper remedy would be to sever the mandate and leave the rest of the act in place.”
“The Court did not express even the slightest interest in setting aside the entire Affordable Care Act,” Constitutional law professor Josh Blackman said in a statement on the oral arguments. “I still think a majority of the Court may find that the mandate remains an unconstitutional requirement to buy insurance. But the Court will likely stop there.”
“The oral argument today in California v. Texas highlighted that a solid majority of the Supreme Court believes in the Founders’ vision of a limited federal government,” Erin Hawley, a senior legal fellow at the Independent Women’s Law Center of the Federalist Society, explained in a statement. “The government may not force individuals to buy a product like health insurance under the Commerce Clase and Congress cannot zero out a tax and still claim to be operating under the taxing power. This means that the individual mandate is unconstitutional.”
During her confirmation hearings, Barrett hinted that severability would be the key issue in California v. Texas. She defined the term in a way that impressed Sen. Dianne Feinstein (D-Calif.), the same senator who once faulted Barrett by saying, “the dogma lives loudly within you.”
“It’s designed to effectuate your intent, but you know, severability is designed to say, ‘Well, would Congress still want the statute to stand even with this provision gone? Would Congress have still passed the same statute without it? So, I think, insofar as it tries to effectuate what Congress would have wanted, it’s the Court and Congress working hand-in-hand,” Barrett explained.
Democrats (as much as they'd like to!) can't stump Judge Barrett:
*ACB defines severability*
FEINSTEIN: "I'm really impressed. Thank you." pic.twitter.com/Rk99eA8hjC
— Senate Republicans (@SenateGOP) October 14, 2020
While the resolution of California v. Texas remains unclear, it is likely that the Court will preserve most of Obamacare. Such a decision would expose Democrats’ shameless fearmongering about Amy Coney Barrett as a disgusting political ploy.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.
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