SCOTUS nominee Barrett says she’s not ‘hostile’ to the Affordable Care Act

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Supreme Court Nominations

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U.S. Supreme Court nominee Judge Amy Coney Barrett said during her confirmation hearing Tuesday she is not “hostile” to the Affordable Care Act or to any statute passed by Congress.

Democratic senators have been highlighting stories of people who were helped by the ACA and its protections for preexisting conditions and insurance coverage without caps.

Barrett said the ACA case pending before the Supreme Court is not a challenge to preexisting conditions or a lifetime cap on insurance payments. The case, California v. Texas, asks whether the health care law and its insurance mandate remains constitutional after Congress eliminated the tax penalty for failure to carry insurance. And if it is unconstitutional, the issue is whether the rest of the statute can stand, Barrett said.

That issue turns on the doctrine of severability, and “that is not something I have ever talked about with respect to the Affordable Care Act,” she said.

Democrats questioned Barrett about a law review article that she wrote in which she said Chief Justice John G. Roberts Jr. had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Roberts had joined with liberal justices to uphold the law in June 2012, holding that Congress had the authority to adopt it under its taxing power. The case was National Federation of Independent Business v. Sebelius.

In the paragraph critiquing Roberts’ opinion, Barrett had written: “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. 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’ commerce power.”

Barrett said in the same article that Roberts has not proven himself to be a textualist in matters of statutory interpretation. To back up the claim, in footnote 63, Barrett cited a 2015 opinion, King v. Burwell, in which Roberts and the court majority interpreted a phrase “established by the state” to hold that the ACA allows tax credits for insurance purchased on an exchange established by the federal government.

Democratic Sen. Dianne Feinstein of California asked Barrett how Roberts stretched the statute beyond its plausible meaning.

Barrett answered that the description is consistent with Roberts’ own acknowledgment in King v. Burwell that the court’s reading of the phrase “established by the state” was not the most natural reading of the law.



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