Barrett high-court vote against Obamacare not as certain as Democrats claim

[September 29, 2020]  By Lawrence Hurley

WASHINGTON (Reuters) - U.S. Supreme Court nominee Amy Coney Barrett’s comments suggesting she backed challenges to the Obamacare healthcare law do not ensure she would vote to invalidate it in an upcoming case, despite Democrats' claims to the contrary.

With the Republican-led Senate moving to confirm Barrett to a lifetime position on the Supreme Court within weeks, she could be on the court's bench for oral arguments on Nov. 10 in the case in which some Republican-dominated states led by Texas and backed by President Donald Trump's administration are seeking to invalidate the law.

The appointment of Barrett, an appeals court judge and former law professor, would give the court a 6-3 conservative majority. But the ruling might not be on ideological lines, and the law is unlikely to be struck down, legal experts said, with even some lawyers who backed previous Obamacare challenges saying the lawsuit lacks merit.

"The case law cuts pretty decisively against the claims made by Texas," said Jonathan Adler, a professor at Case Western Reserve University School of Law who favored past Obamacare lawsuits.

Democrats, including presidential contender Joe Biden, have made Obamacare, formally known as the Affordable Care Act, the central feature of their opposition to Barrett's appointment by Trump to the seat left vacant by the death of liberal Justice Ruth Bader Ginsburg on Sept. 18.

"If nothing else, the voters should be very clear about one thing: President Trump and his party and Judge Barrett will overturn the Affordable Care Act, and they won't stop there," Democratic vice presidential nominee Kamala Harris said on Monday during a campaign stop in North Carolina.

A key provision of the law that would be thrown out if the court struck it down requires insurance companies to provide coverage to people with pre-existing medical conditions.

Barrett, who at the time was a professor at University of Notre Dame Law School, criticized in a 2017 article Chief Justice John Roberts' 2012 majority opinion in a ruling that upheld Obamacare. She has said she would model herself on her mentor, staunch conservative Justice Antonin Scalia, who dissented in that case and backed another unsuccessful challenge to the law in 2015.

"Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute," Barrett wrote in the article about the 2012 ruling, which found that the penalty imposed upon people who do not have health insurance could be upheld as a tax.

Barrett also said in a 2015 radio interview that Scalia "had the better of the legal argument" when the court that year, over his dissent, ruled 6-3 in upholding tax subsidies that are critical to how the law operates.

The legal argument in the new case is that Obamacare is now unlawful in full because tax legislation passed by Congress in 2017 eliminated the financial penalty imposed on people who do not have health insurance. The challengers argue that if there is no longer a tax penalty, then the whole law must fall.

'UPHILL BATTLE'

But critics of the lawsuit said that there is no reason why the rest of the law should be struck down even if the tax penalty provision is now deemed unconstitutional.

The challengers "have a very uphill battle" on that point, said noted Supreme Court lawyer Paul Clement at an event last week hosted by Georgetown University Law Center. Clement represented the Obamacare challengers in the 2012 case.

In recent cases with conservative justices in the majority, the court has declined to strike down an entire statute just because one part was unlawful.

"Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute," conservative Justice Brett Kavanaugh wrote in a ruling earlier this year that some commentators said foreshadowed how he would approach the Obamacare case.

Based on Barrett's record as an appeals court judge, it is unclear how she would address the specific legal issue in the case even though she voiced support for the previous Obamacare challenges.

As an alternative way of deciding the case, the court could instead find that those bringing the lawsuit do not have legal standing to bring the case on the basis that the challengers cannot show that the eliminated tax penalty causes them any harm.

Despite the positive outlook for Obamacare, Nicholas Bagley, a professor at the University of Michigan Law School critical of the lawsuit, said the replacement of Ginsburg with Barrett probably does at least increase the chances of the law being struck down.

"I think the lawsuit probably doesn’t have a good chance of succeeding," he said, "But it’s worth worrying about a small risk."

(Reporting by Lawrence Hurley; Additional reporting by Trevor Hunnicutt; Editing by Richard Cowan and Cynthia Osterman)

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