Jacob Freeland, Class of 2021, Belmont Law
As a result of President Donald Trump’s latest pick for the United States Supreme Court: Amy Coney Barrett, there has been a great deal of discussion regarding the implication that this appointment could mean for the future of the Affordable Care Act.
The appointment of Barrett is surely going to shift the Supreme Court more to the right, if she is in fact confirmed to replace the late Justice Ruth Bader Ginsburg. Based on their views, if Barrett is appointed, the Supreme Court will be compromised of six justices that were appointed by Republican presidents and three justices that were appointed by Democratic presidents.
If Barrett is confirmed, she could potentially be the deciding vote in a case that is being heard just days after the election, which seeks to overturn and strike down the Affordable Care Act. The Central issue in the case is whether the individual mandate, which requires individuals to have medical insurance, is constitutional. If the Supreme Court determines that it is not constitutional, the justices must then also decide whether the individual mandate can be separated from the law or if its unconstitutionality means the rest of the law is also invalid. Previously when hearing cases regarding these challenges, the Supreme Court has left the ACA largely intact.
It is relevant to note that Barrett has been critical of the ACA in the past. During her time as a law professor at Notre Dame, Barrett wrote a twenty-five-page article that reviewed a book by a legal scholar who was considered one of the main architects of one of the prior challenges brought against the ACA. In this article, Barrett wrote that, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Further, she stated that had Roberts “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.” Barrett essentially argued that judges should not defer to what is popular in their judicial decisions. In furtherance of this point, she stated, “The author is surely right that deference to a democratic majority should not supersede a judge’s duty to apply clear text.”
While it is clear that Barrett has had some harsh words regarding the court’s previous rulings regarding the ACA, it still is not known whether or not she thinks there is lawful justification to throw out the whole ACA simply because the individual mandate is ruled as unconstitutional. Further, even if Barrett is appointed and holds against the totality of the ACA, the Court would still have to secure a 5-4 majority for throwing out the entirety of the ACA in order to do so, which previous holdings have shown the court has been reluctant to do as a result of the justices differing views regarding severability.
Thus, ultimately there is still no guarantee that the Supreme Court will rule against the Affordable Care Act, even with a conservative majority of justices on the court. However, it is still something that should be closely monitored and watched going forward with the appointment of the next Supreme Court Justice of the United States.
Samantha Liss, What Trump’s SCOTUS pick could mean for the ACA challenge, Healthcare Drive (Sep. 28, 2020), https://www.healthcaredive.com/news/what-trumps-scotus-pick-could-mean-for-the-aca-challenge/585977/.
Sam Baker, If Trump Replaces Ginsburg, the ACA Really is at Risk, Axios (Sep. 21, 2020), https://www.axios.com/supreme-court-trump-rbg-affordable-care-act-062fc3a6-0b5a-4ba2-b739-8d2ac17d7f22.html.
Amanda Holpuch, Fears for Obamacare if Amy Coney Barrett Confirmed to Supreme Court, The Guardian (Aug. 19, 2020), https://www.wallerlaw.com/news-insights/3738/Tennessee-enacts-COVID-19-Recovery-Act.