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The Barrett factor: Will President Trump’s Supreme Court nominee help end Obamacare?

The Supreme Court is set to hear a case against the Affordable Care Act shortly after November’s election

Judge Amy Coney Barrett speaks after President Donald Trump announced Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington.
Alex Brandon, Associated Press

On Saturday, President Donald Trump announced that Amy Coney Barrett, a judge for the U.S. Court of Appeals for the 7th Circuit, would be the nominee to replace the late Justice Ruth Bader Ginsburg on the Supreme Court. A speedy confirmation, expected from a Republican-controlled Senate, would give the court a 6-3 conservative majority that could influence rulings for decades.

Shortly after November’s election, the Supreme Court will hear Texas v. United States concerning the Affordable Care Act. The lawsuit, originally brought by Republican attorneys general in 2018, argues that the ACA — which established ”Obamacare” — is unconstitutional.

The facts

  • In 2012, the Supreme Court upheld the ACA by a 5-4 majority, deciding that the inclusion of a penalty for forgoing health insurance was not unconstitutional. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” Chief Justice John Roberts wrote.
  • In 2017, a new tax law backed by Republicans set the penalty for forgoing insurance to zero.
  • In 2018, 20 Republican state attorneys general brought the lawsuit, which argues that the ACA was now unconstitutional since a penalty of zero cannot be interpreted as a tax. Two individuals in Texas have since joined the suit.
  • In December 2018, a district court found the law unconstitutional, and the next year a circuit appeals court agreed, but suggested that modifications could be made without scrapping the entire law. To expedite a decision, Democratic attorneys general pushed for the Supreme Court to take on the case.

Barrett’s perspective

Barrett disagreed strongly with Roberts’ interpretation of the health care law. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote in a 2017 essay for the Notre Dame Law School. “He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute.”

The decision

Barrett could vote against the ACA if her nomination is confirmed, flipping the court’s 2012 ruling. Republicans have opposed the ACA from its inception, arguing that it represents government overreach into the health care industry, and Trump has sought to repeal the law since he took office. His administration made a direct appeal to the Supreme Court in June. According to NPR, “At least 20 million Americans — and likely many more who sought coverage since the start of the coronavirus pandemic — who buy insurance through the ACA marketplaces or have Medicaid through the law’s expansion could lose health coverage right away.”

Key quote

“Politically, it’s pretty dumb to be talking about how we need to repeal Obamacare in the middle of a pandemic.” — Joel White, Republican strategist