As the media continue to promote anti-Catholic messaging in their coverage of Amy Coney Barrett, prominent Democrats have promised that they plan to focus on healthcare, not religion.
Were Barrett put on the Supreme Court, everybody from Joe Biden on down has been arguing, it could be the end of Obamacare, meaning the loss of coverage for those with preexisting conditions along with millions of others who depend on the law’s insurance subsidies.
In reality, however, it remains extremely unlikely that the court would strike down the law. And there’s no reason to believe Barrett would want to strike it down.
At issue is a case before the court this fall challenging the constitutionality of Obamacare. Back in 2012, Chief Justice John Roberts ruled that while the law’s individual mandate was not a constitutional exercise of Congress’s power to regulate commerce, it was nonetheless a legitimate use of its taxing power. Essentially, Roberts reasoned, the mandate was simply a tax on going uninsured.
State plaintiffs, joined by the Trump administration, now argue that when the 2017 tax law reduced the penalty for going uninsured to $0, the mandate could no longer be defended as a tax, so all Congress is left with is the underlying mandate, which is unconstitutional. As a result, they argue the mandate now needs to be struck down, and because it is inextricably linked to the rest of the law, the whole thing needs to go.
I have previously written at length as to why, even as a passionate opponent of Obamacare, I consider the current suit to be nonsense. So you can read more on the detailed legal arguments here. But it’s also worth explaining what a long shot it is that the suit could prevail.
First, as Ramesh Ponnuru points out, overturning Obamacare based on the current suit has zero votes that we can be reasonably confident about.
I would also note that there are at least four “no” votes we already know about. I don’t think there is any doubt about the three liberals on the court opposing striking it down. But there also should be no doubt about Roberts, who went through hoops to uphold Obamacare in 2012. In 2012, Roberts was concerned about disruption when the law had not even been implemented yet, whereas striking it down now would uproot the insurance arrangements of millions of people.
So, I think a fair state of play going in is that there are four definite “no” votes and that to win, the challengers will have to run the table with the rest of the justices.
On that front, Justice Brett Kavanaugh seems like an especially shaky vote, based on his opinion in one of the cases leading up to the 2012 Supreme Court decision (which arguably helped plant the seeds for the Roberts taxing decision).
While two conservatives on the court (Justices Samuel Alito and Clarence Thomas) voted to strike down Obamacare in 2012 and Barrett has written critically on Roberts’s decision, that case has no bearing on the current, significantly weaker case. Jonathan Adler, a Case Western Law professor who has been an advocate for previous challenges to Obamacare, has attacked the current case as “absurd” and actually wrote a brief arguing against it. He is in no way alone among conservative scholars.
Furthermore, even if the court somehow declares the mandate unconstitutional, it will be even harder to argue this time that the whole law needs to be struck down. Not only did Congress specifically vote in 2017 to defang the mandate without touching the rest of Obamacare, but also, data since 2012 have shown the mandate to be much less important to the functionality of Obamacare than experts believed at the time. A recent report by the Census found that in 2019, which is the first year without the mandate’s penalties in effect, 92% of people had health insurance for at least part of the year — compared to 91.5% in 2018, the last year with the mandate in place.
Put all of this together, and there is very little basis on which to assume that Barrett will be the deciding vote to strike down all of Obamacare.
