Senate Democrats will make the future of the Affordable Care Act (ACA), also known as Obamacare, the front and center issue in Supreme Court nominee Amy Coney Barrett’s confirmation hearings.
“Health care coverage for millions of Americans is at stake with this nomination,” Ranking Member of the Senate Judiciary Committee Dianne Feinstein (D-Calif.) said during her opening statement on Monday.
“So over the course of these hearings, my colleagues and I will focus on that subject. We will examine the consequences if, and that’s a big if, the Republicans succeed in rushing this nomination through the Senate before the next president takes office.”
Senate Democrats have previously signaled that they would focus on the former President Barack Obama’s signature health care law as part of their fight to block Barrett from being confirmed to the nation’s top court, rather than attack the judge on her religious faith, which backfired on the lawmakers in 2017.
The devastating effects of the CCP (Chinese Communist Party) virus and the upcoming oral arguments of a case challenging the ACA in the Supreme Court have placed health care in the spotlight. 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.
Democrats on the committee on Monday are making the case that Barrett would not hesitate to repeal the health care law. Although the judge has not indicated that she would overturn the law, Democrats say she had dropped hints about her stance in a 2017 comment published in a law journal.
In that piece, Barrett argued that Chief Justice John Roberts in the case National Federation of Independent Business v. Sebelius, 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.”
Moreover, Democrats are claiming that President Donald Trump had nominated jurists who would carry out his agenda to terminate Obamacare, which he has criticized. Trump has previously said in statements that his “judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.”
“If Judge Barrett is confirmed, Americans stand to lose the benefits that the ACA provides,” Feinstein said.
As part of their strategy, Democrats on the committee panel attempted to make their opening statements more emotional by bringing up examples of Americans with serious illnesses who they say would lose their health care if the ACA is struck down.
Republicans, who generally focused on Barrett’s qualifications during their opening statements, have sought to defend Barrett against their colleagues’ claims. Sen. Chuck Grassley (R-Iowa), who spoke after Feinstein, said his colleagues’ claim that “Barrett’s confirmation would be the demise of the Affordable Care Act and the protections for pre-existing conditions” was “outrageous.”
“As a mother of seven, Judge Barrett clearly understands the importance of health care,” Grassley said. “Democrats and their allies shouldn’t claim to know how any judge would rule in any particular case.”
Meanwhile, Sen. Ted Cruz (R-Texas) responded to his colleagues’ claims, saying that the Senate Democrats are attempting to compel Barrett to promise that she would “work to implement their policy vision of healthcare.”
“That is not a judge’s job,” Cruz said.
Similarly, Sen. Mike Lee (R-Utah) told Barrett that he objects “to any time anyone tries to attribute to you a policy position. You’re not a policymaker, you’re a judge.”
Meanwhile, Senate Democrats have also expressed frustration over the speed Barrett’s confirmation hearings were being held, citing risks of holding the hearing when two members of the committee had recently tested positive for COVID-19, the disease the CCP virus causes. The Democrats have repeatedly criticized their Republican colleagues’ ambitious timeline to confirm Barrett before the election, arguing that the next president should be given the opportunity to nominate the person to fill the Supreme Court vacancy.
“The decision to hold this hearing now is reckless and places facilities workers, janitorial staff, congressional aides, and Capitol Police at risk,” Sen. Kamala Harris (D-Calif.), democratic presidential candidate Joe Biden’s running mate, said.
“Senate Republicans have made it crystal clear that rushing a Supreme Court nomination is more important than helping and supporting the American people who are suffering from a deadly pandemic and economic crisis,” she added.
GianCarlo Canaparo, a legal fellow at the Heritage Foundation, told The Epoch Times’s sister media, NTD, that the Democrats’ claims that Barrett would overturn the ACA are baseless.
“This claim that Amy Coney Barrett will reverse the Affordable Care Act is not based on anything, [there is] no evidence she will,” Canaparo said.
He said the issues explored in the 2017 law journal article that is garnering scrutiny are different from the issues before the Supreme Court.
“The position of the case now is … makes it really unlikely that, that the court … no matter who’s on it, is going to strike down the Affordable Care Act the second time,” he said, adding that the Democrats’ strategy ultimately takes away from the purpose of the hearing, which is to decide what makes a good justice.
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 the 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.”
Additional reporting by NTD reporter Kitty Wang.