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Column: The sky isn’t falling on Obamacare, at least not yet

 Amy Coney Barrett gestures as she testifies at her confirmation hearing.
Amy Coney Barrett testifies during her confirmation hearings before the Senate Judiciary Committee on Wednesday.
(Andrew Caballero-Reynolds / Pool via AP)

You may be shocked, shocked, to learn that both parties have been playing politics in the context of the Supreme Court confirmation hearings for Amy Coney Barrett.

The Republicans have tried to offer feeble rationales for why their rushing the confirmation through can be squared with hanging Merrick Garland out to dry in 2016 for some 400 days. It can’t — the move is unprincipled, bare-knuckled politics.

The Democrats have opted for a political strategy of connecting Barrett’s ascent with the court’s opportunity to invalidate Obamacare when it hears a case called Texas vs. California on Nov. 10, a week after the election. The questioning from Democrats has continually leaned on that message, with the help of a series of dramatic stories of citizens whose lives will be devastated if the Affordable Care Act, aka Obamacare, is struck down.

The approach won’t derail Barrett’s certain, albeit razor-thin confirmation, although it may help turn out frightened pro-Obamacare and pro-Biden voters in the coming election.

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But the Democrats are overplaying their hand. Even with Barrett newly installed and locking in the court’s rock-ribbed conservative majority, the sky in all likelihood is not going to fall on the ACA in the Supreme Court this term.

That is by no means because the court’s most conservative wing has accommodated itself to Obamacare. The law survived two previous trips to the Supreme Court only because Chief Justice John Roberts, to the great chagrin of the GOP, joined with Justice Ruth Bader Ginsburg and the other liberals to preserve it. They did so on the grounds that the ACA mandate requiring everyone to be insured wasn’t unconstitutional but was instead a tax that was within Congress’ power to levy. In 2017, Congress made the cost of that “tax” $0, effectively nullifying the insurance requirement.

Democratic senators use the final day of hearings to press their case for why Judge Amy Coney Barrett is dangerous to Americans’ healthcare and personal rights.

Meanwhile, Barrett, in a 2017 law review article, trashed Roberts’ “it’s a tax” reasoning as having “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” As that indicates, the Democrats aren’t wrong about her probable desire to overturn the healthcare law on its merits, but that isn’t exactly what is at issue in the Nov. 10 case.

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Instead, Texas vs. California turns on the fairly arcane legal doctrine of severability. That doctrine comes into play when a court strikes down one provision of a statute and then must determine whether, without that provision, Congress would have passed the law in the first place. If the answer is yes, the errant provision is “severable.” If the answer is no, the whole law falls along with the one problematic provision.

In the ACA challenge before the court in November, 20 states, led by Texas and joined by the Trump administration, are arguing, first, that because Congress zeroed out the financial penalty for not having insurance, the mandate can no longer be considered a tax, a la Roberts, and it is therefore unconstitutional. What’s more, according to the law’s challengers, the provision is not severable, and Obamacare should be entirely invalidated.

The latter is an especially cuckoo argument. Congress purposefully neutered the financial penalty/tax/mandate in 2017 but left the rest of Obamacare standing. If it had thought the one depended on the other, it wouldn’t have done that.

In addition, the court has made clear that it will find for severability, unless there is strong evidence of Congress’ contrary intent. As Roberts has written, the doctrine is meant to be “a scalpel rather than a bulldozer.” Samuel Alito has said similar things in recent decisions, and so has Brett Kavanaugh, in a robocall case in July: The court should “salvage rather than destroy [a law] passed by Congress and signed by the president.”

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All of this adds up to protection for the ACA. No matter what position a Justice Barrett might take on Texas vs. California, Roberts, Alito and Kavanaugh combined with Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor would be enough to overcome the challengers’ severability argument and preserve the bulk of Obamacare, including the provision on preexisting conditions that so many Americans are concerned about losing.

By the way, in her testimony on Wednesday, Barrett seemed to indicate that she too would agree: “The presumption,” she said, “is always in favor of severability.”

The Democrats’ politicking about Barrett and the ACA overstates the immediate risk she poses to Obamacare, but they are not being unduly alarmist in trying to make it clear that, despite the integrity, earnestness and quality of mind Barrett has shown during the hearings, the court and the country are at an if-fire-break-glass moment.

The healthcare law will probably survive in the short term, but the conservative majority fortified with Barrett need not rush. It will have decades to work, and not just against the ACA (on grounds other than those presented by Texas vs. California), but also Roe vs. Wade, gun control, and the current legal landscape. She is a conservative force multiplier for the court’s hard right future.

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@HarryLitman


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