Barrett Will Not Admit In Her Upcoming Hearings That She Will Presumably Strike Down The ACA

We are about to start historic hearings about the confirmation by the Senate of the nomination of Amy Coney Barrett to the Supreme Court. Although she will not admit it, she will presumably strike down the Affordable Care Act (ACA).  Let us examine first the case, and then her position.

The case is California v. Texas. It brings the ACA before the High Court a third time. The first time, it was attacked as unconstitutional. The Court upheld it by five votes—four liberals including Justice Ginsberg, and the swing vote of Chief Justice Roberts. Roberts saved the ACA by finding it was based on the taxing power, not the commerce power.

The second time, it was attacked as effectively nullified by a miswording of a provision. Again the Court saved it by five votes—four liberals including Justice Ginsberg, and the swing vote of Chief Justice Roberts. A furious Justice Scalia (on whom Barrett models her judicial philosophy) dissented. (And Ginsberg is down, so there are no longer four liberals, only three.)

Barrett has spoken in favor of Scalia’s dissent. She accuses Roberts here of “creatively interpreting ostensibly clear statutory text.” (“Creatively,” in the legal world, is a term of strong criticism – that he is making it up as he goes, not following legal guideposts.) She declares that Roberts’ approach “is at odds with the statutory textualism to which most originalists subscribe.” In contrast, she approves Justice Scalia’s accusation that the court was willing “to ‘rewrite’ the statute in order to keep it afloat.” She concludes that “it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.”

Now, the ACA comes back for the third time, in California v. Texas.   This is a bizarre and legally defective challenge. The theory is that Congress repealed the tax provision of the ACA (in a trivial and unheralded provision of the Trump tax cut). Opponents of the ACA now insist that with the tax provision down, Congress would have intended that the entire ACA, from one end to the other, should die.

Why will Barrett presumably strike down the ACA? Start with the law’s strongest chance for life. This would be if Barrett would recuse. She obviously will have been the focus of many days of furious challenge in the Senate Judiciary Committee about this case. So, it would be entirely honest for her to admit she cannot approach the case without pressured prejudgment.

At the Senate Judiciary Hearings, she will probably not announce where she stands on recusing herself in the case. If she recused herself, the case would probably produce a 4-4 tie in the Supreme Court, which would only affect the immediate case, and not create a national precedent against the ACA.

But, she will presumably not recuse. This can be predicted simply from she has not announced until now any recusal, and will follow this in the Senate Judiciary Hearings. Her announcing that, while a relatively slight disappointment to her Republican sponsors, would have tamped down the fire at her hearings, and calmed down the national storm. Ac a consolation prize, her conservative sponsors will have a lifetime of conservatism from her, well worth one case.

After Barrett’s non-recusal, comes her deciding the merits of the case. Here her frequently avowed following of Scalia in general, and his approach to the ACA in the previous case in particular. Scalia follows textualism. This means he only pays attention to the words of the statute, even when this leads to absurd results, and does not concern himself with Congress’s purpose.

Applied to California v. Texas, the Scalia answer follows directly. What does not matter is Congress’s purpose. It does not matter that Congress labored all through 2009 and part of 2010 to create a health insurance system, and would never have sacrificed that whole system because of one particular provision.

What will matter is that she will find  that the tax provision and the mandate provision were so central, that its loss means Congress intended the whole system be annihilated. It does not matter to her that the Court has said, time and again, that the purpose of interpretation is to save the statute, not destroy the statute. As a textualist, she will find that the whole ACA is dead. It will be somber reminder that however the Presidential race comes out, Republicans have set up a 6-3 Court conservative court that will reign supreme for decades to come.