Judge Amy Coney Barrett said on Tuesday that she did not have any conversations with or make any promises to President Donald Trump on how she would rule on a case involving the Affordable Care Act (ACA), also known as Obamacare, or on any potential 2020 presidential election disputes.
“I have had no conversations with the president or any of the staff on how I might rule in that case,” Barrett told Sen. Patrick Leahy (D-Vermont) on the second day of her confirmation hearing before the Senate Judiciary Committee. “It would be a gross violation of judicial independence for me to make any such commitment, or for me to be asked about that case and how I would rule.”
She stressed that it would be a “complete violation” of the independence of the judiciary for anyone to appoint a justice on the top court for the purposes of “obtaining a particular result.”
Barrett, who has been nominated to fill the vacancy on the Supreme Court, was asked by several senators whether she would commit to recusing herself from the pending ACA case and potential 2020 election cases.
During an exchange with Sen. Chuck Grassley (R-Iowa), she said that she has not made any promises or guarantees with anyone on how she would rule on any Supreme Court cases if she were to be confirmed.
“I want to be very clear about this, Sen. Grassley, the answer is no one. I submitted a questionnaire to this committee in which I said ‘no.’ No one ever talked about any case with me. No one on the executive branch side of it,” she said.
“And so just as I didn’t make any pre-commitments and was not asked to make any commitments on the executive branch side, I can’t make any pre-commitments to this body either. It would be inconsistent with judicial independence.”
Barrett did not commit to recusing from any cases, telling senators that the issue of recusal involves legal considerations and is governed by federal statute, which she would abide by. She said she is also governed by precedents under the rule, citing Justice Ruth Bader Ginsburg, who said recusal is a decision that is up to the individual justice and “always involves” consultation with the other eight justices.
“So that’s not a question that I could answer in the abstract,” Barrett told committee chairman Sen. Lindsey Graham (R-S.C.).
Senate Democrats, who have been vocal about their opposition to Barrett’s nomination, are making the case that the judge would not hesitate to repeal former President Barack Obama’s signature health care law. Although the judge has not indicated that she would overturn the law, Democrats say her opinion in a 2017 comment published in a law journal shows her hostility toward the health care law.
In that piece, Barrett argued that Chief Justice John Roberts in the case, National Federation of Independent Business v. Sebelius (NFIB), which upheld the ACA, had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” She said that if Roberts had treated the “individual mandate,” a provision that imposed a penalty on those without health insurance, as it was described in the legislation, the law would have been invalidated.
“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,” Barrett wrote (pdf) at the time. “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.”
The issue of health care is in the spotlight due to the pandemic as well as the upcoming oral arguments of a case challenging the ACA in the Supreme Court. Barrett could be confirmed in time to join the Supreme Court to hear oral arguments on Nov. 10 in the case that seeks to invalidate the ACA.
During the hearing, Barrett clarified her position on the ACA, saying that although she critiqued the statutory interpretation of the majority opinions of past Supreme Court cases involving the ACA, the NFIB case, and King v. Burwell while she was a law professor, she is not hostile to the health care law.
“I assure you I am not hostile to the ACA. I’m not hostile to any statute that you pass,” she told Sen. Dick Durbin (D-Ill.). “So to assume that because I critiqued the interpretation of the [individual] mandate or the phrase ‘established by a state’ means that on an entirely different legal question of severability I would reach a particular result, just assumes that I’m hostile. That’s not the case. I apply the law. I follow the law. You make the policy.”
Supreme Court Case
In November, the Supreme Court will hear a lawsuit brought by a coalition of states led by Republicans, who are challenging the ACA.
In December 2019, judges at the Fifth U.S. Circuit Court of Appeals in New Orleans ruled 2–1 that a key aspect of Obamacare was unconstitutional. The judges in the majority said the “individual mandate,” which required people to obtain health insurance or pay a tax penalty, was invalid after Congress removed the tax penalty in 2017, rendering the law unenforceable.
Following Congress’s amendment, the states and two private individuals filed a lawsuit claiming that the provision was no longer constitutional and that the whole ACA needed to be invalidated because the provision was inseverable from the rest of the law.
A district court judge in Texas found in favor of the plaintiffs, prompting an appeal to the appeals court. The appeals court upheld the plaintiffs’ constitutional claims and sent the case back to the district court for a further review of the question of severability.
The House and Democrat-led states subsequently asked the Supreme Court to overrule the Fifth U.S. Circuit Court’s decision, saying in one of the petitions (pdf) to the top court that the lower court’s ruling has “cast doubt on the validity of the entire ACA, arguably the most consequential package of legislative reforms of this century.”