Barrett, Obamacare, and Severability . . . Again

C learly, a big issue in Day Two of the Barrett confirmation hearings is the Obamacare case before the Supreme Court. Judiciary Committee chairman Lindsey Graham (R., S.C.) began the day by drawing out the nominee, Judge Amy Coney Barrett, on the Court’s doctrine of severability.

Here’s why it’s important.

Democrats are claiming that President Trump and Republicans are trying to rush Judge Barrett onto the Court in time for her to rule on Texas v. California, a challenge to the Affordable Care Act that the justices will hear on November 10 — a week after Election Day. As I’ve repeatedly observed, it is a weak challenge, not remotely as strong as the original challenges to the ACA that the Court nevertheless rejected. Yet President Trump directed his Justice Department to join Texas and the other states who are arguing that the ACA must be invalidated.

They theorize that because the individual mandate has been “zeroed out,” it no longer qualifies as a tax and must be invalidated, since its being a tax was the basis on which the Court upheld it in NFIB v. Sebelius (2012). Extravagantly, and far more dubiously, the states joined by the Trump administration contend that, because the mandate was so central to the ACA, the invalidation of the mandate necessitates the invalidation of the entire, extensive ACA statutory scheme (which includes some popular provisions, particularly coverage of people with preexisting conditions).

This claim triggers consideration of severability, which implicates the question of whether (a) the single purportedly unconstitutional provision can be excised (i.e., is it severable?) or (b) the whole statutory scheme must be invalidated.

To repeat, I am not confident that a majority of the Supreme Court will even agree with the lower courts that the zeroing out of the mandate means it is no longer a tax. (Judge Barrett said this morning that she has not formed a view on that question.) But even assuming five justices accept that premise, there is no way the Court is going to find all of Obamacare is infirm.

It is an easy severability case. The Court will observe that its precedents require a presumption in favor of severability (i.e., against invalidating all of Congress’s work). Moreover, there is no need to rely on a presumption here; Congress went to the trouble of amending the statute. That is, if lawmakers wanted to repeal all of Obamacare because the mandate had been zeroed out, they could have. Obviously, they opted not to.

So if the case is easy, why are Democrats suggesting otherwise? Mainly because Election Day is less than three weeks away. They don’t have much chance of derailing Barrett’s nomination, so they might as well use the high-profile hearings to campaign. In a time of pandemic and economic unease, it is effective electoral politics to remind voters that the president is in court trying to get the ACA, on which many of them depend, thrown out.

Beyond that, the waters are muddied by three other things.

First, Barrett clerked for Justice Scalia, and regards him as her most important mentor, unabashedly saying that she regards his judicial philosophy of originalism as her own. Justice Scalia dissented in Sebelius, arguing that the individual mandate was unconstitutional.

Second, Barrett has written and commented that the dissenters had the better argument in the Obamacare cases: the constitutional issue in Sebelius, and the statutory interpretation issue about tax credits for state exchanges in King v. Burwell. Thus, Democrats maintain, it is manifest that Barrett is hostile to Obamacare and will vote to invalidate it in Texas v. California.

Third, in his tweets and public statements, President Trump has blared that he would put justices on the Court who will strike down Obamacare.

It is a specious argument:

1. The president’s political commentary is, as usual, self-destructive and vacant. Judge Barrett has been clear that she made no commitments to anyone, including the president, about how she would resolve any case, including Texas v. California. Barrett, moreover, has convincingly asserted that she has no hostility to the ACA, and that she does not believe it is a justice’s place to make policy determinations — about health care or anything else. That’s Congress’s job.
2. The issue in Texas is very different from in the two prior Obamacare cases. Even if it were true that Barrett would inevitably hew to Scalia’s position (it’s not), the late, great justice’s prior Obamacare opinions do not reveal how, if he were still with us, he would resolve the new case.
3. Even if the new Obamacare case raised the same questions as the former cases, and even if we needed to divine a hypothetical Scalia analysis of the new case, Barrett points out that Scalia would not automatically ignore a prior case’s precedential effect just because he had been in the minority. He would consider whether overruling the precedent under stare decisis principles. That would require weighing whether public reliance on the precedent counseled maintaining it, even if it was wrongly decided.
4. As Barrett has repeatedly pointed out, she is her own person — as she puts it, “If I am confirmed, you will be getting Justice Barrett, not Justice Scalia.” She adopts Scalia’s philosophy of constitutional and statutory interpretation (originalism and textualism), but points out that originalists disagree all the time, and that she disagreed with Scalia at times when she clerked for him. And indeed, in his aggressive questioning of Barrett on her dissent in a Seventh Circuit gun case, Senator Dick Durbin (D., Ill.) has taken pains to portray Barrett as holding a different position on Second Amendment liberty from that held by Scalia — allegedly, a more extreme one.
5. As I pointed out on Monday, Barrett did not criticize the ACA as policy. She opined that the minority had the better of the constitutional and textual arguments. There is no doubt that this is true with respect to the Commerce Clause issue in Sebelius — that’s why the majority had to resort to upholding it as a tax (rather than a penalty), despite multiple public denials that it was a tax by President Obama and congressional Democrats. It is also patently true with respect to the statutory issue in King v. Burwell. But these positions on narrow, technical constitutional and statutory construction questions are not expressions of a view on the merits of Obamacare — much less on the hundreds of Obamacare provisions that were not before the Court.
6. If the Supreme Court concludes that the individual mandate is now invalid (I am skeptical that it will), the dispositive issue in Texas would be severability. In this instance, again, the Supreme Court has a presumption in favor of saving Congress’s statutory schemes, even if individual provisions have been found infirm. And, as Barrett observed, Congress has amended the ACA. By implication, the Court will conclude that if lawmakers wanted the ACA repealed in its entirety, they would have done so.
7. To repeat what I’ve highlighted a couple of times (here and here):

We can be confident that there are at least five, and probably six, solid votes for severability. Chief Justice Roberts and Justice Kavanaugh emphatically endorsed the presumption in favor of severability just last term (here and here). Justice Alito agreed with them, as did the three liberal justices remaining on the Court after Justice Ginsburg’s death — Justices Breyer, Sotomayor, and Kagan — who will surely vote to preserve as much of the ACA as possible. Furthermore, I suspect Justices Thomas and Gorsuch will side with this majority — and if they don’t, their position is apt to be even more deferential to Congress. They have each suggested that the Court get out of the business of analyzing severability and simply refuse to uphold any portions of a statute found to be invalid, leaving the rest up to lawmakers. In addition, they would be very stingy about who has standing to challenge statutes based on alleged harms. 

Contrary to the claim that there is a Trump litmus test that requires killing Obamacare, there is actually no reason to assume that the Trump appointees already on the Supreme Court (Gorsuch and Kavanaugh) are going to vote to invalidate the ACA. The best bet on what a Justice Barrett would do is that she would either (a) agree to follow the presumption in favor of severability that the Court has recently reaffirmed; or (b) question whether the plaintiffs challenging the ACA have standing and whether the Court should do any severability analysis relating to parts of the ACA that are not properly before the Court.

Democrats are not going to stop hammering away at the pretense that Judge Barrett is a mortal threat to Obamacare. It is a pretense nonetheless.