“I personally don’t think the Supreme Court would overturn it because I think they would allow it to be severed,” added Sen. Ron Johnson (R-Wis.), referring to the high court throwing out the individual mandate but allowing the rest of the law to survive. “I really don’t think that they’re going to strike it down.”
Democrats have maintained a persistent focus on Obamacare in their fight against Barrett, arguing that the Trump administration and Republicans are rushing her onto the court so she can hear oral arguments against the law just one week after the election. Democrats have zeroed in on her prior statements criticizing the previous two Supreme Court rulings upholding the law and highlighted President Donald Trump’s pledge as a candidate to only nominate Supreme Court justices who would overturn Obamacare.
Senate Republicans, however, are accusing Democrats of fear mongering. They’ve also highlighted a “moot court,” in which Barrett did not strike down the law, though she emphasized during her confirmation hearing it was an academic exercise with no real world implications.
“I totally reject the notion that because Donald Trump nominated her means she’s somehow obligated to vote in favor of his positions, all the history in the world flies in the face of that idea,” said Sen. Kevin Cramer (R-N.D.). Trump’s first Supreme Court pick, Neil Gorsuch, for example, sided with the court’s liberals in a 2018 case that made it harder to deport immigrants who commit violent crimes — a top issue for the president.
During her confirmation hearings, Barrett repeatedly stressed that she is not “hostile” to the Affordable Care Act, nor “on a mission to destroy” the law.
But Democrats remain unconvinced. They say Republicans are shifting their message because Obamacare enjoys record public approval and the GOP is worried about holding onto the White House and the Senate.
“They would love to have that countermessage out there and for those who are in close races they’re desperate to say that,” said Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee. “But all you have to do is look at what Trump said, look at what the Republican platform says, look at what virtually every Republican senator has said in briefs about the ACA, it is all laser-focused on blowing up the Affordable Care Act.”
The intense focus on Barrett’s health care views comes just three weeks away from the election. Democrats see their defense of Obamacare as a key reason they won the House in 2018 and believe health care will again carry them to victory. But Senate Republicans are also hoping that Barrett’s nomination will energize conservative voters, in a year where Trump is trailing former vice president Joe Biden in national and battleground polls.
In the upcoming case before the court, California v. Texas, the Republican state attorneys general challenging the law say Congress’ move to repeal the individual mandate’s penalty in 2017 rendered the whole law unconstitutional, since Congress always envisioned the mandate as a pillar of the health system. If the justices agree, the Supreme Court could strike down the entire law, leaving tens of millions without health insurance.
Some Republicans have noted that the law could be equally in peril without Barrett on the court, since a 4-4 tie vote on the case would allow the lower court’s ruling striking down all of Obamacare to stand. Other Senate Republicans have repeatedly stressed that the public shouldn’t worry even if the court kills Obamacare because a decision wouldn’t come down until next year, and Congress would have enough time to come up with a solution.
“I think Republicans are all clearly on board that we’re covering preexisting conditions,” said Sen. Mike Braun (R-Ind.), adding: “Whether we keep it or [strike it] down it doesn’t make any difference. We should support the pillars of what put it in place in the first place.”
But Republicans have previously struggled to coalesce around a workable plan that would receive enough support to pass Congress, and largely stopped trying after their failed attempts to replace Obamacare in 2017. Top Trump administration officials have also shrugged off the need for a replacement before a Supreme Court ruling on the case.
The debate over the future of Obamacare played out recently on the Senate floor, when Senate Minority Leader Chuck Schumer (D-N.Y.), in an unusual move, forced a vote on a symbolic bill to defund the Trump administration’s support for the current Obamacare lawsuit. While the measure failed as expected, it received support from several vulnerable Republicans. That same week, Republicans called a vote on legislation from Sen. Thom Tillis (R-N.C.) that aims to protect preexisting conditions, but lacks some key Obamacare protections.
While Democrats have called for Barrett to recuse herself from the upcoming case if confirmed, she declined to commit to do so in her Senate Judiciary Committee hearings this week and noted that it concerned different legal questions than the previous two challenges.
Barrett also suggested Wednesday that the law could survive a challenge, because judges’ “presumption” should “always” be that the rest of a law can stand even when a key portion is deemed unconstitutional — a concept known as “severability.” But she also noted that courts can strike down entire laws when they believe the provision in question is “so central” that “once it’s pulled out, the whole house of cards collapses” — the exact argument that opponents of Obamacare have made about the individual mandate and that lower federal courts cited when ruling to strike down the whole law.
Legal experts across the political spectrum have noted major weaknesses in the lawsuit and think even a fortified conservative majority may very well uphold Obamacare for the third time. But they emphasize there is still a very real chance Barrett could strike down the law.
“Somehow the case has made it all the way up to the Supreme Court,” said Abbe Gluck, director of the Solomon Center for Health Law and Policy at Yale Law School. “Even before Justice Ginsburg’s death, this case was a looming threat to the Affordable Care Act. Without her, that’s even more true.”
While Republicans this week dismissed Democrats’ assertions that Barrett is a threat to Obamacare, they also took pains to emphasize that they still view the law as a disaster.
Judiciary Committee chair Lindsey Graham (R-S.C.) opened the hearings on two consecutive days by simultaneously criticizing Democrats for focusing so much on Obamacare and reiterating Republicans’ grievances against the health law. But Graham, who is fighting his own tough reelection race, suggested the future of health care resides more with voters than the courts.
“This hearing has been more about Obamacare, than it has you,” Graham told Barrett on Wednesday. “Obamacare is on the ballot.”