Washington — The nomination ofto the Supreme Court last week set into motion a fast-paced and fiercely political battle over the future of the high court, with Senate Democrats, who have few tools to block her confirmation by the GOP-controlled Senate, charging that a vote in favor of Barrett is a vote to kill the Affordable Care Act.
The future of Obamacare, the health care law implemented by President Barack Obama, has emerged as the key focus of Democrats as they work to shape Barrett’s nomination and elevate the stakes for the public in hopes of pressuring the GOP not to move forward with the confirmation process.
“This is about your health care. This is about whether or not the ACA will exist. This is about whether or not preexisting conditions will be continued to be covered,” former Vice President Joe Biden, the Democratic presidential nominee, said Sunday in remarks from Delaware. “This is about whether or not a woman can be charged more for the same procedure as a man. This is about people’s health care in the middle of a pandemic.”
Mr. Trump nominated Barrett, a judge on the 7th U.S. Circuit Court of Appeals, to replace the late Justice Ruth Bader Ginsburg on the Supreme Court on Saturday, just over a week after the pioneering justice died from complications of metastatic pancreatic cancer. Immediately following news of Ginsburg’s death, Senate Majority Leader Mitch McConnell pledged the president’s yet-to-be-named nominee would receive a vote on the Senate floor, and the president urged the upper chamber to take up the confirmation before the November 3 general election.
One week after votes for the next president are cast, the Supreme Court is scheduled to hear oral arguments in a blockbuster dispute involving the fate of Obamacare.
At issue in the case brought by a group of Republican-led states — who are backed by the Trump administration — is whether the health care law’s individual mandate is unconstitutional, since Congress abolished the financial penalty for individuals who do not purchase health insurance in its overhaul of the tax code in 2017. The justices are also tasked with deciding whether the rest of Obamacare can survive if the individual mandate is invalidated.
The Supreme Court upheld Obamacare’s individual mandate in 2012, with Chief Justice John Roberts joining with the liberal wing of the bench to deliver a historic win for the Obama administration. But if Barrett is confirmed, the Supreme Court’s conservative majority would widen to 6-3, leaving Democrats fearful that she and the four other conservative justices would vote to strike down the Affordable Care Act. If Barrett’s nomination is not approved by the Senate in time for oral arguments in the dispute over the healthcare law, an eight-member court will decide the case.
“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, a senator from California who sits on the Senate Judiciary Committee, said during an event in North Carolina on Monday.
Echoing Harris’s warning, Senate Minority Leader Chuck Schumer, a Democrat from New York, said Sunday “a vote by any senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions.”
Barrett has been critical of Roberts’ majority opinion in 2012, which Democrats point to as evidence she would vote to strike down the health care law.
In a 2017 essay published by Notre Dame Law School, where she served as a law professor, Barrett wrote Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” The decision, she continued, “might be explained by the fact that Chief Justice Roberts has not proven himself to be a textualist in matters of statutory interpretation,” unlike Justice Antonin Scalia, a staunch textualist and originalist.
Barrett, who clerked for Scalia on the Supreme Court, has called the late conservative justice her mentor and said she adheres to his same judicial philosophy.
“A judge must apply the law as written,” she said Saturday at the White House. “Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”
While Democrats argue Barrett’s writings indicate she would kill the health care law, the dispute before the Supreme Court in November raises different issues than the 2012 case, including whether the individual mandate is severable from the rest of Obamacare if the mandate is deemed unconstitutional.
In its last term, the Supreme Court declined to invalidate entire statutes despite striking down one provision, with decisions crossing ideological lines. In one case involving robocalls to cell phones, the high court invalidated a government-debt exception allowing robocalls made to collect a debt owed to the government, but left the rest of the robocall restriction in place. In another involving the structure of the Consumer Financial Protection Bureau, the court ruled 7-2 a measure dictating the removal of the bureau’s director can be struck down without invalidating the entirety of the law that created the consumer agency.
Still, Barrett is likely to face pointed questions about Obamacare from Democrats when she testifies before the Senate Judiciary Committee next month.
Already, Senator Chris Coons of Delaware, a Democrat on the Judiciary panel, said he intends to ask Barrett about her past statements on the health care law.
“It’s amazing to me that Judge Barrett has publicly criticized the decision by Chief Justice Roberts that upheld the constitutionality of the ACA and that President Trump is making it clear a vote for Judge Barrett to be on the Supreme Court is a vote to repeal the ACA and take away health care protection from a majority of Americans during a pandemic,” he