Watching Amy Coney Barrett’s confirmation hearings, one would think that she is running for the Senate as a Republican, with getting rid of the Affordable Care Act as her chief campaign commitment.
That was basically how the Democrats treated her, each one with his or her prop image of a constituent who has benefited from the Affordable Care Act. Their predicate was that Barrett opposes the ACA and that if the Senate were to confirm her, she would side with the states currently asking the Supreme Court to deem the act unconstitutional.
The basis for their presumption, which ranking member Dianne Feinstein quoted directly on Tuesday, lies in a book review that Barrett wrote in 2017. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” Barrett writes of Roberts’s logic in National Federation of Independent Business v. Sebelius. “He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he 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’s words scandalize Democrats, but the thing to recognize is that even President Barack Obama preemptively disagreed with Roberts’s logic (the case was decided in June of 2012). Obama told ABC’s George Stephanopoulos in 2009, “For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” His reasons for arguing so are best understood as political, as means of staving off Republican criticisms of the ACA, but either way, it’s not a tax!
That’s what Obama ally Gov. Deval Patrick was doing when he said on the day after the ruling in NFIB v. Sebelius was announced, “Don’t believe the hype that the other side is selling.” He continued, “This is a penalty. It’s about dealing with the freeloaders.” Either way, it’s not a tax, they said.
As Sen. Chuck Grassley pointed out at Monday’s hearing, the New Yorker’s Jeffrey Toobin, who is a liberal and also CNN’s chief legal analyst, wrote at the time, “Roberts did uphold the ACA as an exercise of the constitutional power to tax. Frankly, that argument is not a persuasive one.” He then more or less endorsed the view of the conservative dissenters on that particular question.
Speaking of the conservative dissenters, Justices Scalia, Thomas, Alito, and Kennedy said this: “We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power — even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.”
The point is, Chief Justice Roberts’s logic was worthy of criticism, and it received criticism even from those who were instrumental in crafting the law and campaigning on its legacy. It was just bad legal reasoning. That’s Barrett’s point, too.
