As the nomination of Judge Amy Coney Barrett to the Supreme Court proceeds, Barrett’s opponents have developed a powerful argument for getting Americans to join the opposition: “Barrett is going to kill Obamacare.”
This is an effective line, because Obamacare has become popular in recent years. (Voters only hated the Affordable Care Act until 2017, when they found out what Republicans’ alternative plans were.) Reminding voters about the ACA’s protections for people with pre-existing conditions likely played a big role in the Democrats’ 2018 midterms sweep. So tying Barrett’s nomination to the destruction of the ACA seems like a surefire way to get Americans engaged in a Supreme Court battle, even when those Americans don’t care much about Democrats’ top judicial priorities: ensuring universal access to abortion on demand and protecting the administrative state through Chevron deference and suppression of the non-delegation doctrine.
(FUN FACT: according to polls, “Chevron deference,” which I care about way too much, is the 11,221st most important issue for average voters, right after “Why is The Masked Singer so watchable? Is it a CIA mind control thing?”)
There’s really only one problem with the “Barrett will kill Obamacare” argument: it isn’t true. In fact, as we’ll see at the end, it can’t be true.
Why It’s Plausible: The New Obamacare Lawsuit
Don’t get me wrong: the idea that Justice Barrett will kill the ACA seems plausible at first glance, and I think that many Democrats–including many Democratic thought leaders–sincerely believe it.
There is currently a lawsuit pending at the Supreme Court, Texas v. California, whose explicit goal is to strike down the Affordable Care Act as unconstitutional, using the argument that the individual mandate (which requires every American to buy health insurance) is unconstitutional. Eight years ago, in NFIB v. Sebelius, the Court faced a similar argument. Back then, they barely upheld the ACA 5-4, with Justice Roberts’ opinion (“the mandate is actually a tax”) saving the law even though not one other justice agreed with his take.
The new lawsuit is specifically aiming to change Roberts’ vote. In 2017, Congress eliminated the tax penalty from the individual mandate. Thus, the lawsuit asks, “Is this really a tax anymore? And, if it isn’t a tax, then, by your own logic, isn’t it unconstitutional?”
Now that the Court is on the verge of becoming more conservative, many people assume that the 5-4 majority in favor of the ACA is about to become a 5-4 majority against it. This is especially true on the Left, where the Supreme Court is often viewed as a nakedly political body rather than as an umpire that should strive for neutrality. Moreover, Judge Barrett herself has, in writing (p.80), arguably criticized Justice Roberts’ “mandate is a tax” opinion, as well as other Supreme Court decisions that saved the ACA.
If the Supreme Court agrees to strike down the ACA, there will be no replacement. It will just be gone, until Congress can agree to pass a replacement law. The Trump Administration has put its weight behind the lawsuit.
If that’s all you know about the situation, it looks pretty bad for Obamacare!
But there is a lot more to the situation than that.
(Full disclosure: I strongly opposed the ACA. I’m still angry at Bart Stupak. I thought that conservatives were correct in the follow-up lawsuit King v. Burwell, and I think that the Obama contraception mandate, which Joe Biden wants to bring back, is legally and morally wrong. On the other hand, I am the only person in America who thinks Justice Roberts was actually correct to call the mandate a tax. I explained why at the time.)
The Part Where Texas Will Probably Win
I think that Texas is likely to win on the core question. They’re right: the mandate was only constitutional because it was construed as a tax. But, since there’s no longer a tax penalty, the mandate is no longer a tax. And the mandate is unconstitutional as an exercise of Congress’s power to regulate interstate commerce. Congress can’t just force you to buy broccoli, and it can’t force you to buy medical insurance, not under our Constitution of limited powers. Five justices, including Roberts, agreed with that in 2012. Four justices (two of whom are still on the Court today) didn’t think it could be construed as a tax in the first place. Barrett has seemed sympathetic to this. So there seem to be 6 votes to strike down the individual mandate. Even if Roberts changes sides for some reason (as he does), Barrett would still give the Court 5 votes against the mandate. I doubt the mandate will survive.
But who cares? The mandate isn’t doing anything right now. Since Congress zeroed out the penalty in 2017, there’s no longer any penalty for violating it, and exactly zero people are saying, “Well, I was going to go without medical insurance, but, now that the federal government has politely asked me to please get some, I will go buy it right now!” Striking down the mandate would have no practical impact on anyone.
The question is whether the fall of the mandate will bring down the rest of the law with it.
Severability
When a court determines that part of a law (or contract) is unconstitutional, that creates a new problem: what about the rest of the law?
Suppose a state passed a law that gave every citizen a bicycle, then mandated that every citizen must bike for an hour every day. (The federal government can’t mandate stuff like that, but there’s very little a state law can’t do!) If a court struck down the mandate part, that wouldn’t be too bad: the state could still give everyone a bicycle.
But if a court struck down the bikes-for-everyone part, then left the bike-riding mandate on the books, suddenly citizens would have a big problem: they’re required, by law, to ride a bike every day, but they don’t necessarily have a bike — and may not be able to afford one! In that case, the court would more likely strike down both parts of the law: the bikes-for-everyone part because it’s unconstitutional, and the bike-riding mandate because, without the bike-giving program, it just isn’t workable anymore.
That, in a nutshell, is severability analysis. Courts have to decide whether striking down one part of a law breaks other parts of the law so badly that Congress would want them to go away as well. Current court doctrine, well-grounded in precedent and the Constitution’s assumptions about the judicial role, asserts that severability should err on the side of Congress, by striking down only the part of the law that is actually unconstitutional and “severing” it from the rest. As Chief Justice Roberts wrote in Selia Law v. CFPB:
“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.” Even in the absence of a severability clause, the “traditional” rule is that “the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.” We will presume “that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision . . . unless there is strong evidence that Congress intended otherwise.”
This wasn’t just Roberts speaking for himself, either; Justices Kavanaugh and Alito joined this part of Roberts’ opinion.
Justices Thomas and Gorsuch are skeptical of this view… but not because they think the Court should be more aggressive about killing entire statutes. Quite the contrary! Thomas and Gorsuch have questions about whether the Court has any right to perform severability analysis at all. (For example, see Part II of Gorsuch’s dissent/concurrence in Barr v. American Ass’n of Political Consultants.) Thomas and Gorsuch are inclined to provide injunctions specific to individual plaintiffs rather than having the courts rewrite statutes wholesale.
Back in 2012, there was a pretty strong argument that the individual insurance mandate was absolutely essential to the Affordable Care Act, and that, without it, the entire law should fall. Everyone, on both sides, believed that, without the individual mandate, the entire medical insurance market would fall to pieces. Most everyone agreed that the ACA without the individual mandate was such a stupid idea that it would be “legislation that Congress would not have enacted.” I don’t remember the oral arguments in NFIB v. Sebelius very well, but I don’t think there was much disagreement over this. Without the individual mandate, the insurance markets would explode! The conservative dissenters said as much in their dissent. The Court ultimately avoided that question at the time, because Roberts saved the individual mandate.
Today, the individual mandate is effectively dead already. You can argue whether or not the entire medical insurance marketplace has fallen to pieces or not — but, whatever the policy specifics, one thing is undeniable: Congress chose to kill the mandate. It deliberately zeroed out the tax penalty. (Congress would have repealed the mandate altogether, but couldn’t, due to the arcane parliamentary rules of budget reconciliation.) In 2012, you could say that Congress would never be so stupid as to enact a version of the Affordable Care Act without the mandate (and thus the rest of the ACA has to fall with the mandate). In 2017, Congress did enact a version of the ACA without the mandate, in every practical sense.
The idea that the entire statute now has to die because a non-functional part of it is unconstitutional fails the laugh test, assuming the Roberts-Kavanaugh-Alito standard from Selia Law. Under the Gorsuch-Thomas standard, the Court may not even have the authority to do more than enjoin enforcement of the mandate. Kagan, Sotomayor, and Breyer will reliably vote as a bloc to minimize damage to the ACA. It’s difficult to imagine Barrett ending up to Roberts’ right on the question of the individual mandate but then turning around and supporting a more active (frankly, more left-wing) approach to severability.
So I don’t see a single vote on the Supreme Court in favor of striking down the Affordable Care Act in its entirety. I expect the (non-functional) mandate to be struck down 6-3, but for the rest of Obamacare to be upheld unanimously.
The 5th Circuit Doesn’t Think This Is Serious
I hear you: “But wait, James! This case only got to the Supreme Court because conservative judges have already ruled in favor of striking down Obamacare! Doesn’t that mean the Supreme Court’s conservative justices could do the same thing?”
This misunderstands the record of this particular case. In previous Obamacare lawsuits, a district court would strike down some key provision of Obamacare, then a (conservative) appeals court panel would agree, some other (progressive) appeals court panel would disagree, and finally the Supreme Court would take the case after it had worked its way through the system and become a problem too big to ignore.
Almost none of that happened in Texas v. California.
In this case, only one judge has agreed that the ACA should be struck down. That judge is District Judge Reed O’Connor, a Bush appointee with a long record of upholding the claims of conservative plaintiffs. In this case, ACA opponents deliberately sued in Judge O’Connor’s district in hopes that O’Connor would support their lawsuit. He did. His opinion relies entirely on analysis from the 2010 version of the law, avers that he is bound by 2012 Supreme Court precedent on the matter, and insists that he cannot read any intent to kill the mandate into the 2017 act that functionally (though not formally) killed the mandate.
This was not too surprising, because you can find a partisan federal district judge to strike down nearly anything. Much of the judicial #Resistance to President Trump’s lawful orders has played out in district courtrooms, where the plaintiffs shopped for the most agreeable possible judge before ever filing a lawsuit.
California, understandably, appealed Judge O’Connor’s decision, which went up to a panel of the 5th Circuit Court of Appeals. That court agreed that the individual mandate was unconstitutional, but said, “Whoa nelly!” to Judge O’Connor’s claim that the entire law needed to be struck down.
The 5th Circuit panel ruled that Judge O’Connor’s severability analysis was incomplete, and that he needed to redo it, paying much more attention to Congress’s decision in 2017 and to all the different parts of the ACA that would be affected. They then sent the case back down to O’Connor, with a fairly clear implication that they considered his opinion wrong and were giving him a chance to fix it.
Here’s where the case took a weird turn. Instead of taking its victory and returning to O’Connor’s court for round two, California appealed. California Attorney General Xavier Becerra wanted a definitive answer, not more rounds of litigation, so he appealed to the full 5th Circuit.
The full 5th Circuit agreed with the panel: the case should be sent back down to Judge O’Connor for a re-do.
And so California appealed again, this time to the Supreme Court, asking for its immediate intervention.
The Supreme Court would ordinarily never take a case under these circumstances, with an underdeveloped record and nothing even close to resembling a circuit split. However, in this case, both sides–which included (by this point) most U.S. states, the U.S. House of Representatives, and the White House–all petitioned the court for immediate review. They argued that it was going to get to the Supreme Court eventually anyway, and that the ruling was creating “paralyzing uncertainty” in the health care markets. So the Supreme Court acquiesced, and took the case.
There’s no passel of Trump judges who have ruled in favor of this lawsuit. There is one judge, a Bush appointee, who has ruled in favor of this lawsuit, at the lowest possible level. The decision has reached the Supreme Court because plaintiffs and defendants alike were impatient to get a final result, and convinced the Supreme Court to skip several years of lower-court proceedings, which likely would have killed the case long before it reached the Supremes again.
Nobody Else Thinks This Is Serious, Either
Progressives are used to hearing that anti-Obamacare lawsuits are stupid, baseless, and silly. Progressive media and progressive lawyers have said that, often, about all prior anti-Obamacare lawsuits. Yet those lawsuits reached the Supreme Court, causing great surprise and alarm for progressives who had been reassured by progressive legal analysts that there was nothing to worry about. Now, progressives are wary that it’s going to happen again.
But they got blindsided last time because those lawsuits weren’t silly at all. The claims against the individual mandate were extremely strong, the plaintiffs in King v. Burwell were simply reading the statute’s plain text, and the fact that so many progressives dismissed the threats to Obamacare until late in the game shows how blinkered their perspectives and narrow their thinking is. (Progressive legal analysts, of course, cynically blame “conservative judges” for reaching conclusions the legal analysts didn’t like. They want it to be “all politics,” because that absolves them of being bad lawyers with closed minds.)
However, this lawsuit is silly. Don’t ask progressive legal analysts with a poor track record. Ask the conservative lawyers who built and supported the last couple cases against Obamacare! Jonathan Adler, who developed the argument in King v. Burwell, thinks this lawsuit is silly. Paul Clement, who argued NFIB v. Sebelius before the Supreme Court, thinks this lawsuit is silly. Republican attorneys general in Ohio and Montana — one of them a former clerk for Justice Scalia — both think this lawsuit is silly.
The only people backing this case, even on the Right, are elected Republicans trying to gin up anti-Obamacare sentiment (which, legality aside, is incredibly politically stupid right now).
There appear to be no votes on the Supreme Court in support of this case. Their severability doctrine precludes it. They have written about severability with this case pending and have nevertheless re-affirmed traditional doctrine, boxing themselves in on this case. Where they disagree about severability, it’s in a way that makes this case less likely to succeed, not more.
There is only one minor, partisan judge in the entire federal court system who has championed this case, which has reached the Supreme Court because of impatience, not seriousness.
Even many of the opponents of the ACA don’t think it should be taken seriously, and some have actively worked to fight this case.
Judge Barrett herself ruled on this case in a “moot court” academic exercise shortly before Justice Ginsburg’s death. Barrett was one of eight “judges” in the mock court, which split on the question of the mandate but ruled unanimously to uphold the Affordable Care Act as it stands today.
Your Obamacare is safe.
Vote Count
But what if I’m somehow massively wrong about all this? What if, somehow, Democrats’ worst nightmares are true, and there actually are four conservative judicial activists on the Supreme Court ready to strike down the ACA, using this silly suit as an excuse?
What if Judge Barrett was playing some kind of Xanatos Roulette in that moot court exercise, secretly agrees that the ACA should be struck down, and her appointment provides the fatal fifth vote against Obamacare?
Then… it doesn’t make all that much difference.
The Court today has eight votes. Barrett would give them a ninth vote. In theory, she could join four other justices to issue an opinion striking down all of the ACA with a 5-4 decision. (She won’t, because it’s a silly lawsuit, but she could in theory.)
If, on the other hand, the Senate rejects Barrett and fails to seat a ninth justice before November 10th (when this case will be heard), then this hypothetical court could not use Barrett’s vote. It would deadlock, 4-4. What happens then?
Well, then it would go back down to the 5th Circuit. Their ruling would stand. Obamacare would be held unconstitutional in its entirety, subject to further consideration as already ordered by the 5th Circuit.
Obamacare wouldn’t die immediately. However, in this scenario, all the conservatives in the judiciary have decided to become judicial activists. Since the 5th Circuit is more conservative than the Supreme Court, O’Connor’s ruling would eventually be allowed to stand. The final effect would be the same: the ACA would be struck down throughout the entire country. At most, in this bizarre scenario, keeping Barrett off the court would only buy the ACA some time.
Enough time for a new Democratic Congress and President to replace Ginsburg with another liberal and win the case when it comes back to the Supreme Court in 2022? Maybe. But that would be a slow, roundabout, and unreliable way of solving the problem.
After all, if Democrats hold both Congress and the Presidency, they could just pass a law to fix the ACA by formally repealing the individual mandate (or, alternatively, repass the whole ACA without the mandate). That would moot this whole case, even if Barrett is already on the Court. And if Republicans hold the Senate or the Presidency, then they will block Democratic attempts to seat a new justice or fix the ACA.
So there is simply no future, even theoretically, where Barrett is able to kill the ACA. Barrett sitting on the Supreme Court (or not) has no relevance to the future of the Affordable Care Act. If the ACA is going to die, it is doomed with or without Barrett.
But the ACA is not going to die, because this is a silly case.
UPDATE 10 OCTOBER 2020: Added the information about the moot court exercise where Barrett voted to uphold the ACA.