February, 2018: 20 States Led by Texas And Two Plaintiffs Sued The Federal Government Seeking To Strike The Entirety Of The ACA. According to the Kaiser Family Foundation, “A group of 20 states, led by Texas, sued the federal government in February 2018, seeking to have the entire ACA struck down (the “state plaintiffs”).3 These states are represented by 18 Republican attorneys general and 2 Republican governors. After Democratic victories in the 2018 mid-term elections, two of these states, Wisconsin and Maine, withdrew from the case in early 2019, leaving 18 states challenging the ACA on appeal (Figure 1).4 Two individuals joined the lawsuit in the trial court in April 2018, as plaintiffs challenging the ACA.5 These plaintiffs are self-employed residents of Texas who claim that the individual mandate requires them to purchase health insurance that they otherwise would not buy, although there is no penalty if they fail to buy coverage.” [KFF, 3/10/20]
The Trump Administration Argued That TCJA Invalidated The Constitutionality Of The Individual Mandate. According to the Kaiser Family Foundation, “When the case was argued in the trial court, the federal government did not defend the constitutionality of the ACA’s individual mandate. Instead, the federal government agreed with the state and individual plaintiffs that the individual mandate is no longer constitutional under Congress’s taxing power as a result of the TCJA provision that set the financial penalty at zero.6 It is unusual for the federal government to take a position that does not seek to uphold a federal law.” [KFF, 3/10/20]
The Texas Trial Court Ruled That The Mandate, Allowed To Exist Because It Was A “Tax,” Was No Longer A Tax Because The Penalty For Noncompliance Was Reduced To $0 In The 2017 Tax Cuts And Jobs Act. According to the Kaiser Family Foundation, “In the 2017 Tax Cuts and Jobs Act (TCJA), Congress set the shared responsibility payment at zero dollars as of January 1, 2019. According to the Texas trial court, this action ‘compels the conclusion’ that the individual mandate ceases to be a constitutional exercise of Congress’ taxing power because the associated financial penalty no longer ‘produces at least some revenue’ for the federal government.” [Kaiser Family Foundation, 7/3/19]
The Texas Trial Court Further Ruled That The Entire ACA Must Be Invalidated Because The Mandate Was Deemed “Essential” To The Law When It Was Written In 2010. According to the Kaiser Family Foundation, “The trial court went on to find that, because Congress called the individual mandate ‘essential’ when enacting the ACA in 2010, the entire law must be invalidated.” [Kaiser Family Foundation, 7/3/19]
5th Circuit Found That The Individual Mandate Was Unconstitutional As Amended By TCJA’s Removal Of Financial Penalty For Flouting Insurance Mandate. According to the Kaiser Family Foundation, “B) The individual mandate is unconstitutional after the TCJA set the financial penalty at zero. The 5th Circuit decided that the individual mandate as amended by the TCJA is unconstitutional. The court agreed with the state and individual plaintiffs and the federal government’s assertion that the requirement to produce some revenue is “essential” to the Supreme Court’s earlier finding in NFIB that the individual mandate could be saved as a valid exercise of Congress’s power to tax.20 Without that feature, the mandate is a command to purchase health insurance, which as the Supreme Court held in in NFIB, is an unconstitutional exercise of Congress’ power to regulate interstate commerce.” [KFF, 3/10/20]
SCOTUS Has Scheduled Oral Arguments For November 10th And Will Likely Rule In Spring 2021. According to the Center on Budget and Policy Priorities, “The Trump Administration and 18 Republican state attorneys general are asking the Supreme Court to strike down the entire Affordable Care Act (ACA) as unconstitutional. Oral arguments are scheduled for November 10, with a decision likely next spring. The ACA remains the law of the land for now, and legal experts across the political spectrum view the case against it as extremely weak. But if the courts “terminate” the ACA, as President Trump again urged in May, some 20 million people would become uninsured — likely many more when accounting for COVID-19’s effects on ACA participation. In addition, if the Administration prevails, millions more could be charged more or denied coverage altogether because they have a pre-existing condition or would lose other important protections.” [CBPP, Accessed 9/25/20]
Invalidating The Entirety Of The ACA Would Strip 20 Million Americans Of Health Insurance Coverage. According to the Center on Budget and Policy Priorities, “Striking down the ACA would increase the number of uninsured people by 20 million, or 65 percent, the Urban Institute estimated in late 2019. (Urban also provided estimates by state and demographic group.) Actual coverage losses would almost certainly be higher when accounting for the historic public health and economic crises that have caused many people to lose jobs or income, making many of them eligible for the ACA’s help. And striking down the law would end not only the ACA’s major coverage expansions — such as the Medicaid expansion, premium tax credits, and health insurance marketplaces ― but other important protections as well, harming tens of millions of people who would remain insured.” [CBPP, Accessed 9/25/20]
If The ACA Is Ruled Unconstitutional, It Would Affect Protections For People With Pre-Existing Conditions, Medicaid Coverage, Subsidies That Help People Afford Insurance, And Other Popular Provisions. According to the Associated Press, “With health insurance availability, cost and coverage on the line for millions of Americans, a federal appeals court seemed inclined Tuesday to rule that the core provision of President Barack Obama’s signature health care law is unconstitutional. […] The hearing marked the latest development in a 2018 lawsuit by 18 Republican-leaning states claiming that the absence of a tax converts the law into an unconstitutional directive to U.S. citizens to buy a product. A lower court judge ruled in December that it did, and that the entire law must fall as a result. That includes popular provisions such as protection for pre-existing conditions.” [Associated Press, 7/9/19]
If The ACA Is Struck Down, Insurers Could Place Annual And Lifetime Limits On Coverage. According to the Center on Budget and Policy Priorities, “And striking down the law would end not only the ACA’s major coverage expansions — such as the Medicaid expansion, premium tax credits, and health insurance marketplaces ― but other important protections as well, harming tens of millions of people who would remain insured. Insurers could once again put annual and lifetime limits on coverage, including for people with employer plans.” [CBPP, Accessed 9/25/20]
If The ACA Is Struck Down, Young Adults Would No Longer Be Able To Stay On Their Parents’ Plans Till 26. According to the Center on Budget and Policy Priorities, “And striking down the law would end not only the ACA’s major coverage expansions — such as the Medicaid expansion, premium tax credits, and health insurance marketplaces ― but other important protections as well, harming tens of millions of people who would remain insured.” […] “Young adults would no longer be able to stay on their parents’ plans up to age 26.” [CBPP, Accessed 9/25/20]
If The ACA Was Struck Down Medicare Beneficiaries Would Face Higher Prescription Drug Costs With The Reopening Of The Donut Hole. According to the Center on Budget and Policy Priorities, “And striking down the law would end not only the ACA’s major coverage expansions — such as the Medicaid expansion, premium tax credits, and health insurance marketplaces ― but other important protections as well, harming tens of millions of people who would remain insured.” […] “Medicare beneficiaries would face higher prescription drug costs due to the Medicare “donut hole” reopening.” [CBPP, Accessed 9/25/20]
2017: Barrett Wrote That Chief Justice John Roberts Creatively Interpreted The Affordable Care Act’s Penalty For Those Who Did Not Buy Health Insurance And Pushed The ACA Beyond Its Plausible Meaning In Order To Save It. According to Indianapolis Star, “Barrett wrote in 2017 that Chief Justice John Roberts pushed the Affordable Care Act beyond its plausible meaning in order to save it. Roberts creatively interpreted as a tax the law’s penalty on those who don’t buy insurance, allowing the court to uphold the constitutionality of the law, Barrett said.” [Indianapolis Star, 7/8/18]
In A 2017 Essay Discussing The 2012 Supreme Court Ruling In NFIB V. Sebelius, Barrett Claimed That A Professor Critical Of The Ruling Was ‘Surely Right That Deference To A Democratic Majority Should Not Supersede A Judge’s Duty To Apply Clear Text.’ According to CNN, “Barrett's 2017 essay exploring the 2012 Supreme Court ruling known as National Federation of Independent Business v. Sebelius focused on a book written by Professor Randy Barnett critical of the ruling. Barrett asserted that author Barnett was ‘surely right that deference to a democratic majority should not supersede a judge's duty to apply clear text.”[CNN, 10/10/20]
2015: Barrett Said The Dissenting Justices In King V. Burwell Had “The Better Of The Legal Argument.” According to CNN, “In 2015, after the high court rejected a separate challenge, Barrett remarked on Boston-based National Public Radio program that she thought dissenting justices had "the better of the legal argument."” [CNN, 10/10/20][WBUR, 6/25/15]
The Question In King V. Burwell Was What To Make Of A Written Error In The Law That Seemed To Say Subsidies Were Only Available To People Buying Insurance On ‘An Exchange Established By The State.’ According to the New York Times, “The case concerned a central part of the Affordable Care Act that created marketplaces, known as exchanges, to allow people who lack insurance to shop for individual health plans. Some states set up their own exchanges, but about three dozen allowed the federal government to step in to run them. Across the nation, about 85 percent of customers using the exchanges qualify for subsidies to help pay for coverage, based on their income. The question in the case, King v. Burwell, No. 14-114, was what to make of a phrase in the law that seems to say the subsidies are available only to people buying insurance on ‘an exchange established by the state.’” [New York Times, 6/26/15]
The Supreme Court Ruled 6-3, In King V Burwell That The ACA Allows The Federal Government To Provide Nationwide Tax Subsidies To Help Poor And Middle Class People Buy Health Insurance. According to the New York Times, “The Supreme Court ruled on Thursday that President Obama’s health care law allows the federal government to provide nationwide tax subsidies to help poor and middle-class people buy health insurance, a sweeping vindication that endorsed the larger purpose of Mr. Obama’s signature legislative achievement. The 6-to-3 ruling means that it is all but certain that the Affordable Care Act will survive after Mr. Obama leaves office in 2017.” [New York Times, 6/26/15]
In His Majority Opinion, The Chief Justice Argued That “Congress Passed The [ACA] To Improve Health Insurance Markets, Not To Destroy Them.” According to Brookings, “The Chief Justice closes by reminding the court that the legislature made the ACA for a reason, and it’s not the court’s job to parse words to reverse the entire purpose of their lawmaking. ‘Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,’ he says, and if the court reshapes the law to do the opposite then they are overreaching into the legislature’s territory.” [Brookings, 6/26/15]
Chief Justice: The Error Should Not Be Interpreted As Written But In The Context Of What The Law Intended. According to Brookings, “The plaintiffs claim that the sentence in question is a simple matter of dictionary definitions. If the law says ‘state,’ they say, it must refer to only one of the 50 states or DC. But Roberts asserts that such a rudimentary interpretation cannot be the intent of congress, since this would undermine just about every clause of the law. ‘That’s a problem,’ he says: ‘if we give the phrase ‘the State that established the Exchange’ its most natural meaning, there would be no ‘qualified individuals’ on Federal Exchanges. But the Act clearly contemplates that there will be qualified individuals on every Exchange.’ Opening a dictionary and immediately declaring the case resolved would mean steamrolling the legislature’s intent, which Roberts claims is judicial overreach. (Scalia responds directly to this argument in his dissent, referring to this idea as ‘pure applesauce’).” [Brookings, 6/26/15]
Law Professor Andrew Koppelman: Barrett Agreed With Scalia’s Questionable Dissent In King V. Burwell. According to a Hill op-ed by Andrew Koppelman, “Here, too, Barrett agrees with Scalia’s dissent. She writes that ‘insofar as the Court strained the language to avoid a holding that would have gutted the statute, the opinion reflects the same impulse animating NFIB v. Sebelius.’ Lawyers normally would never concede that their interpretation ‘would have gutted the statute.’ Barrett, however, blithely notes that ‘modern textualists have backed away from the absurdity doctrine.’ So, should all of Arkansas law have been nullified?” [Op-ed by Andrew Koppelman - The Hill, 9/27/20]
In His Dissent For King V. Burwell, Scalia Argued That The Minor Drafting Error, Which Would Have Harmed Health Insurance Markets, Should Have Been Interpreted As It Was Written. According to a Hill op-ed by Andrew Koppelman, “The second challenge was King v. Burwell. The law’s opponents tried to exploit a minor drafting error in an effort to deprive millions of people of insurance. That, of course, would have defeated the purpose of the law. Courts ordinarily know how to make sense of drafting glitches. So does everyone: You understand this sentence. In 1945, Arkansas passed an act that included this section: ‘All laws and parts of laws, and particularly Act 311 of the Acts of 1941 are hereby repealed.’ The language unambiguously, albeit insanely, repeals every law in Arkansas. In his coauthored book, ‘Reading Law’, Scalia observed that a literal reading of this language ‘threatened to wipe out all the statutory law in the state.’ He used this episode to illustrate the ancient canon of statutory interpretation, that laws should not be read to produce absurd results. Yet in King, he, along with Justices Thomas and Alito, were ready to wipe out the coverage that the law obviously was meant to extend.” [Op-ed by Andreww Koppelman - The Hill, 9/27/20]
Barrett Wrote That Modern Textualists Have Backed Away From The Absurdity Doctrine. According to Countering the Majoritarian Difficulty by Amy Coney Barrett, “Thus modern textualists have backed away from the absurdity doctrine, which justifies textual departures when the application of a statute’s plain text would produce an inequitable result. See Manning, supra note 28, at 2485-86 (arguing that the absurdity doctrine is inconsistent with the premises of modern textualism). They have also expressed doubt about the legitimacy of those canons that arguably permit courts to depart from a text’s ordinary meaning. See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. REV. 109, 164 (2010) (asserting that substantive canons permitting courts to alter the language of a statute conflict with ‘[t]he bedrock principle of textualism,’ which ‘is its insistence that federal courts cannot contradict the plain language of a statute, whether in the service of legislative intention or in the exercise of a judicial power to render the law more just’).” [Counter The Majoritarian Difficulty - Amy Coney Barrett, 2017]
Law Professor Andrew Koppelman: Barrett’s Willingness To Entertain Poor Legal Arguments Against The ACA Posed A Threat To The ACA. According to a Hill op-ed by Andrew Koppelman, “The press has zeroed in on one of her writings, which is remarkably sympathetic to earlier challenges to ObamaCare. But the issues in those cases are unlikely to come before her. The real danger lies in her more general willingness to entertain lousy legal arguments for anti-ObamaCare results.” [Op-ed by Andrew Koppelman - The Hill, 9/27/20]
Barrett Criticized The Obama Administration’s Method For Giving Religious Employees At Religious-Affiliated Organizations Access To Birth Control Without Requiring The Organizations To Pay For It. According to Indianapolis Star, “She also criticized the Obama administration’s method for giving employees of religious-affiliated organizations access to birth control without having the institutions pay for it. Religiously-affiliated charities and universities were allowed to shift the cost on to the health insurance provider.” [Indianapolis Star, 7/8/18]
2012: Barrett Joined Hundreds Of Academics In Signing An Open Letter To The Obama Administration Criticizing The “Accommodation” Built Into The ACA For Religious Institutions. According to Letter to the Obama Administration, “The Obama administration has offered what it has styled as an ―accommodation‖ for religious institutions in the dispute over the HHS mandate for coverage (without cost sharing) of abortion-inducing drugs, sterilization, and contraception. The administration will now require that all insurance plans cover (―cost free‖) these same products and services. Once a religiously-affiliated (or believing individual) employer purchases insurance (as it must, by law), the insurance company will then contact the insured employees to advise them that the terms of the policy include coverage for these objectionable things.” [Letter to the Obama Administration, 2/27/12]
The Letter Accused The Obama Administration Of A “Grave Violation Of Religious Freedom” By Compelling Religious Employers To Purchase Health Insurance That Provided Employees “Abortion-Inducing Drugs, Contraception, And Sterilization.” According to Letter to the Obama Administration, “The simple fact is that the Obama administration is compelling religious people and institutionswho are employers to purchase a health insurance contract that provides abortion-inducing drugs,contraception, and sterilization. This is a grave violation of religious freedom and cannot stand.It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews,Muslims, and other people of faith and conscience to imagine that they will accept an assault ontheir religious liberty if only it is covered up by a cheap accounting trick.” [Letter to the Obama Administration, 2/27/12]
Letter Called Exemption A “Cheap Accounting Trick.” According to Letter to the Obama Administration, “The simple fact is that the Obama administration is compelling religious people and institutionswho are employers to purchase a health insurance contract that provides abortion-inducing drugs,contraception, and sterilization. This is a grave violation of religious freedom and cannot stand.It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews,Muslims, and other people of faith and conscience to imagine that they will accept an assault ontheir religious liberty if only it is covered up by a cheap accounting trick.” [Letter to the Obama Administration, 2/27/12]