Barrett: No precedent protects Affordable Care Act from pending challenge

Judge Amy Coney Barrett on Tuesday said a pending challenge to the Affordable Care Act (ACA), which the Supreme Court will consider on Nov. 10, is not affected by past rulings by the court upholding the health care law.

Barrett said Chief Justice John Roberts’s landmark ruling in National Federation of Independent Business v. Sebelius, which upheld the Affordable Care Act in a 5-4 decision, does not protect the law from being struck down over the issue now pending before the high court.

The Supreme Court also upheld the health care law in King v. Burwell in 2015 in a 6-3 decision, which ruled that individuals qualified for premium tax credits regardless of whether they lived in states where the federal government set up health insurance exchanges or where the state government did so.

Barrett, a judge on the 7th Circuit Court of Appeals, said on Tuesday that neither decision protects the Affordable Care Act, which is now being challenged by 20 Republican-led state governments on the basis of Congress eliminating the tax penalty associated with the individual mandate, something lawmakers did in the 2017 Tax Cuts and Jobs Act.

“There’s not precedent on issue that’s coming up before the court. It turns on a document called severability, which was not an issue in either of the two big Affordable Care Act cases,” she told Judiciary Committee Chairman Lindsey Graham (R-S.C.).

She said the questions the court must decide in California v. Texas, for which justices will hear oral arguments just days after the election, is whether the individual mandate was a tax or a penalty and whether it can be cut out while leaving other parts of the law intact now that Congress has zeroed out the fee associated with it.

“If it is a penalty, can it just be cut out from the statute so that the rest of the statute including protection for preexisting conditions stand,” she said.

Democrats have repeatedly warned that President Trump nominated Barrett to the court so that she would strike down the Affordable Care Act, but Republicans say this claim is overblown.

Senate Majority Leader Mitch McConnell (R-Ky.) has said Democratic warnings that Barrett will strike down the health care law are “a joke.”

Graham also voiced skepticism on Tuesday about the possibility that California v. Texas will succeed.

“A lot smarter people than me suggest that severability would be a hard challenge for those who are opposing the law, but time will tell,” he said.

Asked by Graham if she would recuse herself from ruling on California v. Texas if she is a member of the Supreme Court when the case is decided, Barrett said she couldn’t answer.

“Justice [Ruth Bader] Ginsburg in explaining how recusal works said it’s always up to the individual justice but it always involves consultation with the colleagues, with the other eight justices so that’s not a question I could answer in the abstract,” she said.

Jaime Harrison, Graham’s Democratic challenger, on Tuesday morning accused the Republican senator of being central to GOP efforts to overturn the Affordable Care Act by setting up a schedule to put Barrett on the court before it hears arguments in California v. Texas.

“With the ACA’s day in court just weeks away, it’s no wonder that Sen. Graham is rushing to fill this vacancy,” Harrison said in a statement. “He has tried and failed to repeal Affordable Care Act the Senate, so is now trying to push repeal through the courts. Undoing this law would unleash chaos throughout our healthcare system during a pandemic — pulling coverage away from nearly 250,000 South Carolinians and stripping protections for the over 900,000 South Carolinians with pre-existing conditions.”

–Updated at 2:45 p.m.