Just how bad? That’s difficult to say.
President Donald Trump announced Barrett’s nomination on Saturday. With a quick Senate confirmation, she could be on the bench Nov. 10, when the court plans to hear California v. Texas, a lawsuit calling on the justices to wipe the Affordable Care Act off the books.
And although Barrett hasn’t said a lot about the health care law, her one major comment came in a 2017 law review article, when she said a previous decision upholding the law “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
The author of that ruling was Chief Justice John Roberts, who joined the four liberals in allowing most of the program to stand. It’s a pretty clear sign that, had Barrett been on the bench then, she would have voted with the other Republican-appointed justices and said Obamacare was unconstitutional.
But in predicting how Barrett would approach this challenge, there is one complicating factor. Most experts consider the new case, which comes from a group of Republican state officials and has the backing of the Trump administration, to be a lot weaker.
Finding a respectable legal expert who will vouch for it on the merits is nearly impossible. Before the death last week of Justice Ruth Bader Ginsburg, most informed observers expected the case to fail and possibly to fail big, with some and maybe even most of the other conservative justices joining Roberts and the liberals in turning it away.
But California v. Texas is coming before the Supreme Court because three federal judges, one from a federal district in Texas and two on the U.S. Court of Appeals for the 5th Circuit, already found its logic compelling. All three are Republican appointees, which almost certainly helps explain why they ruled as they did. Obamacare has been the subject of relentless attacks ― and the object of monomaniacal hatred ― on the political right since President Barack Obama signed it in 2010.
The question now is whether Barrett brings similar feelings to the case ― and whether she’s the kind of judge who thinks the quality of legal arguments matters.
The Bonkers Argument Now Threatening Obamacare
The issue at the heart of California v. Texas is the Affordable Care Act’s “individual mandate,” which was also at issue in the 2012 ruling Barrett criticized.
The Affordable Care Act initially imposed a financial penalty on people who elected not to have health insurance coverage. In the previous case, called NFIB v. Sebelius, conservative lawyers backed by the Republican Party said Congress had no authority to impose that kind of penalty. Roberts and the four liberal justices disagreed, arguing that the penalty was just another form of taxation, which the Constitution clearly permits.
That settled the issue ― or at least it did until 2017, when Trump and the Republicans in Congress eliminated the penalty as part of their tax legislation that year. It didn’t actually strike the mandate language; it simply reduced the penalty to $0.
The case is based on a clever argument that sounds good at first but that unravels when you dig into it. Jonathan Adler, Case Western University Law School
That prompted the new lawsuit, which comes from Republican state officials across the country ― and which, in a highly unusual move, the Trump administration now supports.
If the penalty is $0, then it can’t be a tax, these Republican officials argue. And if the mandate isn’t a tax anymore, then the mandate is an unconstitutional command to purchase insurance. And if the mandate is unconstitutional, they say, the rest of the law is, too, because the features of the Affordable Care Act are so intertwined. Congress, they say, did not intend for the rest of the program to operate without this essential piece.
The flaws in the argument are not difficult to spot, even for somebody with no legal training. It’s quite a stretch to say that the mandate is now an unconstitutional command to get insurance when the consequence for defying it is literally nothing ― and when there is no mechanism of enforcement because there is no fine to collect.
As for congressional intent, the lawmakers who voted to zero out the mandate in 2017 were fully aware that they were removing a piece of the program while letting the law stand ― and they were quite obviously OK with that, because that is how they voted.
Several Republican lawmakers have said as much. Among them is Lamar Alexander, the retiring senator from Tennessee who is chairman of a committee with direct jurisdiction over the health care law. “I am not aware of a single senator who said they were voting to repeal Obamacare when they voted to eliminate the individual mandate penalty,” he said last year.
Even if the court were to decide the mandate is now unconstitutional, that doesn’t mean the rest of the law has to go. Under well-established, widely recognized principles of “severability,” judges are supposed to do minimal damage to a law when they declare a piece of it unconstitutional.
To put it another way, whether or not the Supreme Court decides to make a statement about the constitutionality of the now-meaningless mandate, it should let the rest of the Affordable Care Act stay in place. Even lawyers who supported previous challenges are saying as much.
Barrett’s Record And Writing On Obamacare
The assumption about Barrett, based on her legal writings and the impressions of colleagues, is that she would push the court in a strongly conservative direction on issues such as abortion rights. That’s a pretty safe assumption, given her past writings and speeches.
Her thinking on the latest challenge to the Affordable Care Act is more difficult to pin down. Her full statement in that 2017 law review article makes plain that she thinks Roberts got it wrong when he joined the liberals in 2012. Like many conservative critics, she says it was wrong to call the mandate penalty a tax when the text itself doesn’t.
“He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power,” Barrett wrote. “Had he treated the payment as the statute did ― as a penalty ― he would have had to invalidate the statute as lying beyond Congress’s commerce power.”
In the same article, Barrett criticized another ruling upholding the health care law on the grounds that, once again, Roberts misinterpreted the law in order to prop it up. In 2012, Barnett signed a petition protesting a provision of the Affordable Care Act guaranteeing coverage of birth control, arguing that it violates religious liberty.
Despite all of that, Barrett could still rule to uphold the Affordable Care Act this time around. She could, for example, reject the new lawsuit simply on the grounds that a mandate with no penalty attached isn’t a command at all ― and, as a result, not a constitutional problem.
There is no legal doctrine that is too crazy to be accepted by Republican judges if it’ll stick a pin in Obamacare. Andrew Koppelman, Northwestern University Law School
Alternatively, she could agree with the plaintiffs that the mandate is unconstitutional but then say that the rest of the law can stay in place. That would give the law’s opponents a rhetorical victory of sorts but without actually changing anything in the health care system.
Barrett, a summa cum laude graduate of Notre Dame Law School, is highly regarded for her intellect ― which suggests, at the very least, she can spot a weak argument when it’s in front of her.
“The case is based on a clever argument that sounds good at first but that unravels when you dig into it,” Jonathan Adler, a Case Western University law professor, told HuffPost in an email.
Adler, who was an architect of yet another previous challenge to the Affordable Care Act, went on to say that her views on the case may ultimately reflect her sensibility of how a judge should act more than her political philosophy.
“How a judge would vote in this case is not based upon how textualist or originalist they are, but is implicated (at least in part) by their view of the proper judicial role,” Adler said.
Other Justices, Other Factors That Could Matter
One thing to remember is that Barrett’s vote might not be the decisive one anyway. Many legal observers think that Brett Kavanaugh hinted in a previous decision that he was inclined to let the rest of the law stand. Kavanaugh plus Roberts and the three liberals would be five votes to let the program keep going.
And if Barrett isn’t on the court in time to hear the case, there’s the possibility of a 4-4 tie with Ginsburg’s seat unfilled, which would send the case back to the lower courts for more litigation or a decision to rehear it with all nine justices in place.
All of this is taking place against the backdrop of the presidential election, which could mean a new president, a new Senate majority or both starting January ― with the power to pass a one-sentence law that would effectively render the whole case moot.
If that doesn’t happen and Barrett ends up with the case in front of her, one open question is how much she would think about the court’s standing with the public ― and whether she contemplates the consequences of a decision to strike down the health care law.
Roberts’s 2012 decision to uphold the law surprised many analysts, given his conservative credentials and past role as an official in Republican administrations. One popular theory is that he thought overturning a program that mattered to so many people and invalidating the signature achievement of a Democratic president would provoke a political backlash to the court and, perhaps, the Republican Party.
Such a backlash would surely be much bigger now. The Affordable Care Act has become slightly more popular with time, Democrats and their supporters are furious at Republicans for blocking Obama’s Supreme Court nominee in his final year in office, and, perhaps most important, a large portion of the population now has a direct stake in the law.
There are the millions who get subsidized private insurance through the exchanges, the millions on expanded Medicaid and then all the millions with preexisting conditions who have guarantees of coverage they would not have without the law.
A ruling wiping out the Affordable Care Act would be a blow to all of them, for the sake of an argument that has provoked outright derision from much of the legal establishment. Andrew Koppelman, a law professor at Northwestern University who has also been critical of past challenges to the law, told HuffPost on Friday that “I can’t get through the logic without giggling, so maybe she can’t either.”
But Barrett has a reputation as somebody unusually willing to disregard past precedents when such rulings are inconsistent with her vision of the Constitution. That makes her votes in big cases difficult to project.
Ultimately, as Koppelman warned, a lot depends on whether Barrett sees the Affordable Care Act in the same harsh light as judges who have ruled against it before. “This latest case is even clearer evidence than the others that there is no legal doctrine that is too crazy to be accepted by Republican judges if it’ll stick a pin in Obamacare.”
This article originally appeared on HuffPost and has been updated.