Republican Senators fought back against Democratic allegations that a Supreme Court featuring Judge Amy Coney Barrett would overturn the Affordable Care Act, and along with it a mandate that insurance companies sell plans to those with preexisting conditions, during confirmation hearings Tuesday.
Democrats have been eager to cast the vote on Coney Barrett as a referendum on the Affordable Care Act, citing a pending case Texas v. California, in which Republican attorneys general and governors from twenty states have argued the law should be declared unconstitutional and overturned.
They have pointed to a 2017 article in which Judge Barrett said that Chief Justice Robert’s 2013 decision to uphold the law “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Sen. Lindsey Graham, a South Carolina Republican, urged Judge Barrett to distinguish the issues before the court when it upheld the law in 2013 and the issue before the court in California v. Texas, and why her opinion of the previous ruling does not mean she would vote to overturn the law based on arguments in the pending case.
The 2012 case was decided on the question of whether the law’s mandate that Americans purchase health insurance was constitutional under Congress’ power to regulate interstate commerce. In a 5-4 decision, Justice Roberts concluded that the Act was constitutional because the penalty associated with the mandate was constitutional as Congress is given the power to levy taxes and not because of commerce-clause powers in the constitution.
In California v. Texas, opponents of the law argue that because Congress has since made the penalty for not buying insurance zero dollars, it can no longer be called a tax, thus eliminating Roberts’ justification for the law.
“The issue now is that Congress has zeroed it out, can it be called a tax, or is it now a penalty,” Barrett said. “The second issue is if it is a penalty, can it be just cut out from the statute so that the rest of the statute, including protection for preexisting conditions stands.”
“A lot smarter people than me suggest that severability would be a hard challenge for those who were opposing the law,” Graham replied.
Nevertheless, President Trump campaigned on appointing justices that would overturn the law, and overturning the law and the 2020 Republican Party platform has argued that the law is unconstitutional and decisions upholding it should be reversed.
“This is what President Trump said, this is what your party platoform said: reverse the Obamacare cases,” said Sen. Sheldon Whitehouse, a Vermont Democrat. “Why is it surprising for us to be concerned that you want this nominee to do what you want nominees to do?”
Sen. Graham pointed to legislation he proposed in 2017 that would have replaced Obamacare with another law that would contain some protections for Americans with preexisting conditions, though the bill was never brought for a vote.