By Thomas Catenacci
Supreme Court nominee Judge Amy Coney Barrett criticized Chief Justice John Roberts’s 2012 majority decision that upheld the Affordable Care Act.
Barrett’s criticism was part of a 2017 Notre Dame University Law Review article in which she reviewed legal scholar Randy Barnett’s book “Our Republican Constitution.” President Donald Trump nominated Barrett, a judge on the Seventh Circuit Court of Appeals, at the White House Saturday to fill the vacancy left by Justice Ruth Bader Ginsburg, who died on Sept. 18.
“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” Barrett wrote.
In National Federation of Independent Business v. Sebelius, Roberts ruled that the Affordable Care Act’s individual mandate statute was constitutional if it was interpreted as a tax instead of a penalty. The individual mandate was the provision that said those who didn’t sign up for health insurance would be fined.
“Chief Justice John Roberts concluded … that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause,” the court’s decision said.
However, the decision added: “[Roberts] delivered the opinion of the Court … concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.”
Critics of the decision argued that Roberts exceeded his constitutional role as justice and rewrote the law. Barrett came to a similar conclusion.
“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 in 2017. “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.”
She added: “One would be hard-pressed to find many originalists who think that a court should find a way to uphold a statute when determinate text points in the opposite direction.”
In this context, Barrett mentioned former Justice Antonin Scalia’s view that Obamacare should be renamed “SCOTUScare” because of Roberts’ decision.
Meanwhile, the Supreme Court is set to hear arguments in California v. Texas on Nov. 10, a case that has significant ramifications concerning the Affordable Care Act and individual mandate provision. The case could be one of the first that Barrett presides over if Senate Republicans succeed in appointing her before the Nov. 3 election.
In California v. Texas, the district court ruled the individual mandate and therefore the entire Affordable Care Act was unconstitutional. The appeals court agreed that the mandate was unconstitutional, but didn’t rule on the constitutionality of the entire law.
“The individual mandate is unconstitutional because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power,” the appeals court decision said.
The Supreme Court will review the constitutionality of the individual mandate, if the ACA can survive without the mandate, and if the ACA is unenforceable across the country in November.
“Judge Amy Coney Barrett has a written track record of disagreeing with the U.S. Supreme Court’s decision upholding the Affordable Care Act,” Democratic presidential nominee Joe Biden said in an email statement following Barrett’s nomination Saturday.
The former vice president added: “She critiqued Chief Justice John Roberts’ majority opinion upholding the law in 2012.”
Echoing Biden, Senate Minority Leader Chuck Schumer warned that a vote for Barrett is a vote against health care.
“A vote by any Senator for Judge Amy Coney Barrett is a vote to eliminate health care for millions in the middle the COVID-19 pandemic. Democrats are fighting for Americans’ health care,” Schumer tweeted.
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