How Amy Coney Barrett Could Affect the Future of the Affordable Care Act

On Monday, the Senate Judiciary Committee began its confirmation hearings for Amy Coney Barrett, President Donald Trump’s nominee to fill Ruth Bader Ginsburg’s Supreme Court seat. Barrett is expected to be confirmed and join the Court this year, possibly before Election Day. This means that she could potentially rule on any election disputes, and it almost certainly means that she could rule on an upcoming case that may decide the future of the Affordable Care Act.

In Monday’s hearing, Democrats expressed concerns about how Barrett would rule on the case, known as California v. Texas, which challenges the law’s mandate that individuals “shall” buy insurance. In 2012, Chief Justice John Roberts joined the Court’s four liberals in a decision that preserved the A.C.A.; the majority’s rationale was that a penalty for not buying insurance was a tax rather than an unconstitutional act of coercion. In a law article from 2017, Barrett wrote that “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” an argument Democrats have pointed to during Barrett’s confirmation hearings as proof that she is all but certain to come down against it. At the hearings, Barrett has said that she did not believe that the Court was bound by precedent in considering California v. Texas, but added, “I assure you I am not hostile to the A.C.A.”

To talk about the case and the future of the Court, I spoke by phone, on Monday, with Nicholas Bagley, a law professor at the University of Michigan and an expert on health law and the A.C.A. During our conversation, which has been edited for length and clarity, we discussed why even conservative legal experts find this challenge to the A.C.A. so flimsy, other potential threats to the law, and what Barrett’s and Justice Brett Kavanaugh’s records suggest about future rulings.

How would you describe the Obamacare case that has made its way to the Court?

The case rises out of the Republicans’ efforts to dismantle the Affordable Care Act in 2017. They failed in that effort, and it doesn’t take a historian to reconstruct what happened, because we were all there.

This is John McCain’s famous thumbs-down.

Right. And so at the end of 2017, as a consolation prize, Republicans voted to eliminate the penalty for going without insurance, and every one of the Republican senators that spoke about it talked about the repeal of the individual mandate. The President has talked about the repeal of the individual mandate. Of course, that’s the functional result of what Congress did. It scotched the only mechanisms for enforcing the A.C.A.’s command to buy insurance.

The lawsuit arose when some clever Republican attorneys general saw an opportunity. And I have to say, right out of the gate, just describing the argument gives it more force and solidity than I think it actually has. It’s a difficult claim to even describe. I’m going to do my very best, but keep in mind that I view this as basically a ridiculous endeavor all the way through.

The way to understand the argument is to keep completely distinct in your mind the individual mandate, which is to say, the instruction in the Affordable Care Act that you shall buy insurance, and the penalty for going without insurance. Now, nobody actually thinks they’re separate. They’re one and the same thing. They’re obviously connected. But, if you keep those two things conceptually completely distinct, then you start to understand the argument, because when Congress eliminated the tax penalty for going without insurance it left language in the A.C.A. saying that you shall buy insurance.

Now the language didn’t have any force and effect after the penalty was eliminated, and the Supreme Court in 2012 had already interpreted that language as giving people a choice between buying insurance and going without it. And, because it was a choice, it’s not a coercive command. The Republican attorneys general said, no, what you need to understand is that “shall” language is best understood as a coercive command, as “You shall buy insurance.” We know from the 2012 decision that a coercive command is unconstitutional. And we know that the A.C.A. was only saved because it could be understood as imposing a tax, giving people a choice between buying insurance and paying the tax.

This was what John Roberts, voting with the four liberal Justices, ruled, correct?

Exactly. He also said, joining with the conservatives, that, if this were a statute that commanded people to buy insurance, that would be beyond Congress’s powers. But there’s a different way of reading the statute and giving people a choice, and that’s how I’m going to save the statute, he said. These Republican attorneys general say that, once the tax penalty has been taken away, there is no longer any choice in the matter, and thus no way to construe the Affordable Care Act to give people that choice. And, therefore, the only way to make sense of that word “shall” is as a coercive command. This is literally their argument. I’m not mocking it. They say that Congress made the Affordable Care Act more coercive when it eliminated the mandate penalty than when it was still in the law.

How?

With the tax penalty, you could construe the law as giving people a choice. Without the tax penalty, you can no longer construe the law as giving people a choice, in order to save its constitutionality. So you just have to give it its fairest reading, which on their view is imposing a coercive command, even though it’s a command that’s backed up by nothing.

There’s also the issue of whether they have standing, correct?

There are three big issues in the case, and the plaintiff has to run the table on all three of them. There’s a really big standing problem. There’s the merits issue that we were just discussing, and then there’s a severability question. On standing, the plaintiffs have a very weak argument. When the red-state attorneys general first filed this lawsuit, they immediately realized they had a big issue on their hands, because the individual mandate doesn’t apply to them—it applies to individuals. And so they scrambled, and they found two Texas consultants. They submitted this affidavit saying that they believed that they read the law to require them to buy insurance and that they felt compelled to comply with the letter of the law, even if it was unenforceable.

They’re not credible affidavits, to be totally candid. But that’s the basis for the argument that the states have standing.

And the severability?

Severability is the most audacious of the arguments, which is to say, if you believe that the individual mandate is unconstitutional in its current form, the proper remedy here is just to strike it down. Congress didn’t think it was necessary to the proper functioning of the act, and we know that because Congress eliminated the enforceable penalty at the same time that it maintained the rest of the law. But the challengers say, no, no, no—if you actually look at what Congress did, it left intact findings that Congress made in 2010, when it first adopted the Affordable Care Act. Those findings include statements that the individual mandate is essential to the operation of the law as a whole.

And the rationale for that, of course, is that the individual mandate, when it had a penalty attached to it, was thought to be necessary to bring people who are relatively healthy into the insurance market. Those findings don’t have any bearing on a mandate that is completely unenforceable, but the plaintiffs say that if Congress had meant to get rid of those findings it could have done so. It chose not to. Therefore, you’re stuck with the findings. Therefore, the individual mandate must be essential to the law as a whole. It basically serves as an instruction from Congress not to sever it from the rest of the law and, therefore, the entire law has to fall.

Some conservative intellectuals I’ve read have basically said this lawsuit is ridiculous, and that it’s not likely to lead to the overturning of the A.C.A. And that this case could be decided 7–2, or 8–1, with people like Samuel Alito and Clarence Thomas, perhaps, being in the minority. Is that also your sense?

I think that the gamble here was always to push the case, in the hopes that Justice Ginsburg would die and be replaced by a hard-line conservative, or that Trump would be reëlected by the time the case was heard. That’s always been the play. Chief Justice Roberts has turned away two much stronger challenges to the law, so it’s very hard to see how he’s going to vote to overturn the law. That said, the center vote in a case like this is likely to be Justice Brett Kavanaugh, but he’s shown himself to be more temperamentally aligned with Chief Justice Roberts in prior cases, and has given some indication that he might be skeptical of this case.

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