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Amy Coney Barrett Is No Threat to Obamacare

Bloomberg logo Bloomberg 9/29/2020 Ramesh Ponnuru
Doris Matsui et al. posing for a picture: Political posturing. © Photographer: Anna Moneymaker/Bloomberg Political posturing.

(Bloomberg Opinion) -- Joe Biden’s official statement on the Supreme Court nomination of Judge Amy Coney Barrett mentions her name once. It mentions Roe v. Wade once. It has eight sentences alluding to the court’s pending case on the Affordable Care Act.

The fate of Obamacare is the issue that Biden, and other Democrats, think gives them their best political opportunity during Barrett’s confirmation process. They are probably right. The 2010 health-care law’s guarantee of affordable insurance coverage for people with preexisting medical conditions is popular (at least in isolation), and many voters intensely support it. Texas has a lawsuit against Obamacare, which the administration of President Donald Trump is backing. If the lawsuit succeeded and Congress and the president did not pass a new protection, people with pre-existing conditions could have trouble getting affordable insurance.

The current lawsuit grows out of a previous one. The Affordable Care Act contained an “individual mandate” that commanded nearly all Americans to buy health insurance that met congressional specifications. In 2012, the Supreme Court considered a challenge to the law based on the notion that Congress does not have the power to issue that command. Four justices said it does. Chief Justice John Roberts said that it doesn’t, but that part of the law could instead be considered as a tax on going without insurance. He and four other justices voted to uphold the law.

In 2017, Republicans enacted a tax law that set the penalty for going without insurance at zero. The new lawsuit says that the mandate therefore can’t be upheld as a tax any more, and so the whole health-care law has to go.

The lawsuit has to overcome several hurdles. One is the question of the standing to sue: Plaintiffs have to show that they’ve been injured, and if the tax is zero, who is the victim? Another is a technical question known as “severability”: Why should the whole law go because of a portion of it that Congress has already effectively repealed?

There is no evidence that Barrett looks positively at this lawsuit. Biden’s statement insinuates that we can take her comments about previous cases against Obamacare to indicate her support for it. She has said that Roberts stretched the meaning of the ACA to uphold it as a tax. She’s right about that. But that view doesn’t imply that the current lawsuit should prevail. The Republican attorneys general of Ohio and Montana are opponents of Obamacare who think the individual mandate is unconstitutional, but have submitted a brief saying that the lawsuit should fail.

Jonathan Adler, a professor of law at Case Western Reserve University, said that earlier Supreme Court cases involving Obamacare have involved principles that had long been of interest to legal conservatives. In the 2012 case, for example, the key question involved the limits of congressional power. In those cases, he sided with the conservative litigants. Not this time. “This case is about whether or not you can find a clever jujitsu move to take down a statute because Congress didn’t,” he said.

It’s not just that there’s no basis to think that Barrett favors this legal challenge. There’s no evidence that any of the five Republican appointees currently on the Supreme Court do. A unanimous defeat remains a possibility. Just two months ago, three of those Republicans agreed with an opinion that stated “a decisive preference for surgical severance rather than wholesale destruction” when one part of a law must be struck down.

Cynical Democrats would say that the conservative justices will find a way to end Obamacare, even if it means breaking with their stated principles. But Barrett’s record does not indicate she is that kind of judge. She voted to uphold restrictions on anti-abortion sidewalk counselors because that’s what she thought the best reading of precedent required.

Biden wants you to think that confirming Barrett would spell doom for the Affordable Care Act. He is wrong because the lawsuit against the act is a longshot with little legal merit. But because the Trump administration made the foolish decision to back the lawsuit on political grounds, that’s a truth it can’t say.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News.

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