High Court Nominee Implies That an Incorrect ACA Precedent Could Stand

Judge Amy Coney Barrett today described principles of legal reasoning that could let her vote to keep most or all of the Affordable Care Act (ACA) intact, even if she disliked the law and believed that earlier Supreme Court rulings keeping the law alive were incorrect.

Barrett talked about the nature of legal precedents during a Senate hearing on her nomination to the U.S. Supreme Court.

Barrett said that she would be especially careful about overturning any court precedents that involve “substantive due process,” or the idea that the government cannot take away certain rights or liberties, such as the right for people to use birth control, without having a good reason, and without due process.

Resources

A video recording of the first day of the Amy Coney Barrett confirmation hearing is available here.
An earlier article about the Barrett nomination is available here.

“Part of the rationale for judges adhering to the rule of law, and judges taking great care to avoid imposing policy preferences, is that it’s inconsistent with democracy,” Barrett told members of the Senate Judiciary Committee, at hearing that was held in the U.S. Capitol and streamed live on the web. “Nobody wants to live in accord with the law of Amy…. I can’t as a judge get up on the bench and say, ‘You’re going to live by my policy preferences because I have life tenure, and you cannot kick me out if you don’t like them.’”

Amy Coney Barrett

President Donald Trump has nominated Barrett to fill a Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg.

The Senate Judiciary Committee has scheduled four days of hearings on Barrett’s nomination. The first day of hearings occurred Monday.

Barrett was born in New Orleans in 1972. She has a bachelor’s degree from Rhodes College and a law degree from Notre Dame. She clerked from 1998 to 1999 for Justice Antonin Scalia, while Scalia was on the Supreme Court. She’s now a law professor at Notre Dame and a justice on the 7th Circuit U.S. Court of Appeals.

The Affordable Care Act, California v. Texas, and Severability

One of the two statutes in the ACA is the Patient Protection and Affordable Care Act of 2010 (PPACA).

PPACA is thousands of pages long and does many things, such as creating subsidies for pandemic preparedness and training health care workers to meet the needs of older patients.

One PPACA provision, the “individual shared responsibility” provision, requires many people to have what the federal government classifies as “minimum essential coverage,” or solid major medical coverage, or else pay a penalty.

ACA opponents have argued that the mandate is an unconstitutional requirement for people to buy a commercial product, and that, because the ACA contains no “severability clause,” or provision letting the rest of the law survive if one part dies, the whole law should be thrown out.

ACA supporters argued, in National Federation of Independent Business (NFIB) v. Sebelius, a case that came before the U.S. Supreme Court in 2012, that the individual mandate penalty was essential to the ACA, and that opponents could not challenge the provision because, legally, it was a tax. ACA supporters said the provision was protected by a federal law, the Anti-Injunction Act, that protects taxes from court challenges.

The court ruled that the individual mandate penalty was a tax and that, therefore, plaintiffs were unable to challenge the constitutionality of the mandate provision.

In 2017, Congress set the individual penalty at zero.

Officials in Texas and other states that generally oppose the ACA have argued that, now that the penalty has been set at zero, the provision is no longer a tax and is simply an unconstitutional requirement for people to buy a commercial product.

Texas and its allies, including the U.S. federal government, have been battling over the case with California and California’s allies.

The Supreme Court is now preparing to hear oral arguments on the case, which is now called California v. Texas, Nov. 10.

Health insurers have asked the court to uphold the ACA, or at least nullify as small a portion of the law impossible. If the court killed all of the ACA, insurers, employers, consumers and others would have to operate with the sudden cancellation of Summary of Benefits and Coverage rules; a sudden return of the gap between where routine Medicare Part D prescription drug plan benefits end and where catastrophic benefits begin; massive changes in Medicaid rules; and massive changes in how hospitals run medical residency programs, or programs for new physicians.

In theory, if the Supreme Court threw out the entire ACA in June, without allowing for any transition period, a combination of state insurance rules and the elimination of ACA subsidies and rules could lead to health insurers in at least some states being locked into providing 2022 individual health coverage that most people could not actually afford without subsidies, but with unsustainably low total premiums, on a guaranteed issue basis. In that scenario, many purchasers of 2022 individual health coverage would be people with serious health problems, and their claims would lead to severe individual health market losses.

What Barrett Said at the Hearing

Barrett has written in the past that courts can overturn some precedents. She has also criticized the legal basis for the Supreme Court’s 2012 ruling on the ACA.

Some Republicans and Democrats, including Sen. Sheldon Whitehouse, D-R.I., have suggested that Barrett’s writings imply that she would be quick to overturn the 2012 Supreme Court ruling finding

Barrett said, in a response to a question from Sen. Lindsey Graham, R-S.C., that overturning a court precedent should not be based on a judge’s personal views, and should not be based solely on a belief that a ruling is wrong.

“You have to look at reliance interests,” Barrett said. “Reliance interests by those who have relied upon the precedent.. The people of the United States, who have ordered their affairs around it.”

Barrett also talked generally about how she sees the California v. Texas case.

“The issue is whether now that Congress has completely zeroed out the mandate, whether it is still attached to a penalty, and, even if so, is it constitutional?” Barrett said. “Even if not, is that fatal to the statute?”

Barrett said the case will also depend on whether the individual mandate really is critical to the ACA or can be plucked out.

Severability “is not something I have ever talked about with respect to the Affordable Care Act,” Barrett said. “Honestly, I have not written about severability that I know of, at all.”

Democrats’ Views

During opening statements given on Monday, many Democrats on the Judiciary Committee emphasized their fear that Trump is nominating Barrett to the court to kill the Affordable Care Act, and that she is very likely to vote to throw out the law.

The number of references to the “Affordable Care Act” and related terms, such as Obamacare, outnumbered references to the word “abortion” by at at least 129 to seven, according to a ThinkAdvisor analysis of the remarks made on Monday.

Sen. Dianne Feinstein, D-California, the highest ranking Democrat on the committee, gave the example of Christina Monroe Garcia, a 60-year-old California resident who has cataracts and epilepsy.

Before ACA major medical coverage, underwriting and subsidy rules took full effect, in 2010, “she had always struggled to obtain insurance,” Feinstein said. “The cost of coverage, when it was even offered to her, averaged between $2,500 and $3,000 a month, far more than she and her husband could afford.

In 2010, Feinstein said, Monroe Garcia was able to get coverage through the Affordable Care Act for just $200 per month.

“Within weeks, she was able to have cataract surgery,” Feinstein said. “We can’t afford to go back to those days when Americans could be denied coverage or charged exorbitant amounts.”

Sen. Amy Klobuchar, D-Minn., emphasized that Barrett might cast the deciding vote on California v. Texas.

“One judge can decide if millions of Americans, including their family, would lose their insurance,” Klobuchar said. “”One judge can decide of millions of Americans can lose their right to keep their kids on their insurance until they’re 26 years old. One judge can decide that if seniors’ prescription drugs, which already are too high, could soar even higher.”

The November Elections

Sen. Patrick Leahy, D-Vt., expressed concerns that Trump appears to be appointing Barrett to be sure that he can win a case overturning the results of the presidential elections, if the vote tally shows that he has fewer votes than Joe Biden.

Leahy asked Barrett to state that she would “recuse herself from,” or sit out from, rulings involving the 2020 federal election results.

Barrett said she could not tell Leahy how she would apply recusal rules in any specific case.

“I certainly agree it is critical for Americans to have confidence in the Supreme Court,” Barrett said. “I commit to you to fully and faithfully apply the law of recusal, and part of that law is to consider appearance questions, and I will apply the facts that other judges have before me in determining whether the circumstances require my recusal or not.”

— Read Biden and Trump Agree on Role for Private Health Insurance, on ThinkAdvisor.

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