Judge Amy Coney Barrett spent nearly 20 hours of quality time with the Senate Judiciary Committee, answering questions ranging from her opinions on “little warm puppies” to why she wants to strike down the Affordable Care Act. One line of questioning was meant to be a joke, but both were equally unserious.
Democrats gave it their best shot throughout Barrett’s confirmation hearings to manufacture the false impression that Barrett — frankly, the strategy would have likely been the same, regardless of who the president nominated — would take healthcare coverage away from millions of Americans. Nothing could be further from the truth.
“I am not here on a mission to destroy the Affordable Care Act,” Barrett told the committee. “I’m just here to apply the law and to adhere to the rule of law.”
Arguments on the constitutionality of the Affordable Care Act will be heard by the Supreme Court one week after the Nov. 3 presidential election. The legal issues at hand are whether the law is unconstitutional because it no longer includes the penalties originally imposed by the law’s individual mandate and whether the minimum coverage provision is severable from the rest of the law.
In 2012, the Supreme Court narrowly upheld the “individual mandate” piece of Obamacare on a tricky legal technicality. Obamacare’s individual mandate penalty raised revenue because it fined who people did not buy insurance. For that reason, the court upheld the mandate as a legitimate tax under the “taxing and spending” clause of the Constitution.
In 2017, President Trump and Congress used the Tax Cuts and Jobs Act to lower the Obamacare penalty tax to zero, rendering the individual mandate obsolete. It saved taxpayers millions of dollars. The mandate still exists in law, but the penalty is bringing in no revenue, which brings us up to speed in 2020.
Can a penalty that brings in no revenue still be considered a tax? A group of 20 states is now asking the Supreme Court again whether Congress can mandate that people buy a product, even if it has nothing to do with revenue. The question has broader implications. Today, it’s health insurance. But what will the government be allowed to force people to purchase next under this dangerous legal precedent?
Democrats have refused every effort to repeal the mandate, which would eliminate the grounds for this case altogether. They have also blocked Republican bills to protect preexisting conditions. During the hearings, they tried to bait Barrett into giving a preemptive ruling on a case for which she has not yet even heard the arguments.
The Democrats sitting on the Senate Judiciary Committee were less concerned with Barrett’s qualifications, of which there are many, and judicial philosophy, and more concerned with exploiting America’s healthcare anxieties during a pandemic as a rallying cry for the final weeks leading up to the presidential election. But I digress.
Here is what we know: The Constitution is clear. The president has a solemn duty to make a nomination for the Senate’s consideration when the high court has a vacant seat, in this case, one made vacant by the tragic passing of a beloved justice. Trump fulfilled this duty by nominating Barrett, an exceptional nominee who graduated at the top of her class at Notre Dame Law School, clerked for Justice Antonin Scalia, and serves as a judge on the U.S. Court of Appeals for the Seventh Circuit.
Now, the Senate must do its job. Preferably, Senate Democrats will prove themselves able to do so without debasing the sacred duty of confirming a judge to the highest court of the land and making it all into an opportunistic charade of partisan-charged political discourse akin to the Kavanaugh hearings.
Barrett is extremely qualified. She respects the law and applies it fairly. She has explicitly rejected the notion of judicial activism. She prefers to leave healthcare policy decisions to policymakers and healthcare opinions to pundits.
In his first term, Trump worked to protect Medicare’s promise to our seniors, improve healthcare price transparency, expand telehealth, and protect preexisting conditions. He oversaw the largest decrease in drug prices in nearly 50 years. Perhaps Senate Democrats should spend less time trying to trap Judge Barrett in political “gotcha” moments and more time helping these patient-centered reforms succeed.
Nick Stehle is the vice president of communications at the Foundation for Government Accountability.
