The Republican Senate has confirmed President Trump’s nomination of Amy Coney Barrett to the United States Supreme Court. The confirmation is record breaking in a couple of ways. First, it was the fastest confirmation of a Supreme Court Justice in history. Second, it was the most partisan vote to confirm a Supreme Court Justice as no Senate Democrats voted to confirm. It was also the first such hearing or confirmation to take place while citizens were voting in a Presidential election. Democratic Senators protested the appropriateness of the hearings up to the deciding vote, maintaining that the next President should be the one to fill the vacancy on the high court left by the death of Justice Ruth Bader Ginsburg.
Many believe that this confirmation of another conservative to the high court means the Affordable Care Act (ACA) will be declared unconstitutional in the case of Calfornia v. Texas which will be heard on November 10. See Death of RBG Could be Death of ACA. In a case brought by Republican Attorneys General and supported by the Trump administration, a Texas District Court held that now that the penalty tax for failing to have health coverage under the individual mandate has been reduced to zero and the Supreme Court upheld the ACA as constitutional under Congress’ taxing power, the individual mandate is unconstitutional. The court then also held that the individual mandate was so integral to the ACA that the entire statute must also be unconstitutional because no provisions could be severable from the mandate. The United States Court of Appeals for the Fifth Circuit upheld the district court on the individual mandate but remanded the case to the lower court to go through the Act with a “finer tooth comb” to see if any part of it could be saved. However, Democratic Attorneys General then appealed the case to the High Court.
Of course, severability is the big issue. The Court could agree that the individual mandate is now unconstitutional but that the rest of the ACA is severable, and therefore, still law. During her confirmation hearing Judge Barrett intimated that she might rule that the individual mandate is severable because the ACA “is obviously a very long statute” and answered “That is true” to Senator Graham’s question, “If you can preserve a statute, you try to, to the extent possible?” She also stated that while she has been critical of prior decisions upholding the ACA, she does not believe that she has ever written on how she feels about severability.
Importantly, President Trump has said during the Presidential campaign and debates that he will “protect pre-existing conditions”. However, if the entire ACA is declared unconstitutional by the Supreme Court, the protection for pre-existing conditions in the ACA disappears. Legislation would be required to reinstate such protections.
The only way the Supreme Court can preserve the protection of pre-existing conditions in California v. Texas, is to uphold the entire ACA by finding the zeroed out individual mandate tax still constitutional or upon striking down the individual mandate, finding it severable from the rest of the ACA.
Wouldn’t it be a treat if that is how Trump keeps his campaign promise.