Jim Hartman
Courtesy Photo
“Judge Amy Barrett will overturn the Affordable Care Act.” So declared Vice President Kamala Harris last fall.
More from Harris then:
“President Trump made it clear that he had a litmus test for Supreme Court justices — destroy the Affordable Care Act’s protection for people with preexisting conditions and overturn our right to make our own health care decisions.... Republicans are desperate to get Judge Barrett confirmed and millions of Americans will suffer for their power play.”
Joe Biden’s official statement on the Supreme Court nomination of Barrett last year mentioned her name once . It mentioned Roe vs. Wade once. It had eight sentences alluding to the pending case on the Affordable Care Act claiming Americans would lose their health insurance.
There were other similar false demagogic messages, including from Sen. Chuck Schumer that Barrett “clearly said she’d strike down the Affordable Care Act.”
Nancy Pelosi charged that “Barrett’s nomination threatens destruction of life-saving protections for 135 million Americans with pre-existing conditions together with every other benefit and protection of the ACA.”
Progressive zealot , Alexandria Ocasio-Cortez, opined: “Confirming Amy Coney Barrett will be the end of the Affordable Care Act.”
All wrong — totally wrong. Will all the Democratic Party luminaries who claimed Barrett’s confirmation would mean the end of ObamaCare now apologize?
Democrats actually knew last year that ObamaCare was in no real threat of being overturned.
On June 17, Barrett very predictably joined the U. S. Supreme Court’s 7-2 majority upholding the law.
During Barrett’s confirmation hearings, Democrats absurdly claimed that placing her on the court was to assure that the ACA would be invalidated. But Barrett’s record, in addition to her answers to Senate Judiciary Committee questions, made it a near certainty that she would not vote to toss out the statute.
Two important lessons should be learned – never underestimate Democratic Party politicians’ cynicism, and, that conservative justices don’t decide cases based on their policy preferences.
Texas and 17 other states with Republican attorneys general, along with two individual plaintiffs, in California vs. Texas, challenged the constitutionality of the Affordable Care Act, after Congress zeroed out the penalty for not carrying health insurance in the 2017 tax reform.
Plaintiffs’ dubious argument was that the entire ACA became unconstitutional when Congress zeroed out the individual mandate – the mandate having been the basis on which the court in 2012 had earlier upheld the statute. Most judicial experts expected plaintiffs to lose.
As a matter of law, the plaintiffs’ contention that the mandate was not severable from the rest of the ACA, therefore invalidating the entire voluminous statute, was untenable. In addition, plaintiffs did not have standing to raise their claims.
In the end , six (Chief Justice Roberts and Justices Thomas, Sotomayor, Kagan, Kavanaugh and Barrett) joined Justice Breyer’s opinion in declining even to reach the merits and held instead that plaintiffs lacked standing.
Under court precedents, plaintiffs must suffer an “injury in fact,” The court’s seven vote majority found that neither the individuals nor the states could show they would be harmed by the zeroed-out penalty. Justices Alito and Gorsuch dissented.
The decision underscored that the court, even with recent additions of more conservative justices, is still able to find broad coalitions supporting middle-ground outcomes in controversial cases.
Progressives treat the Supreme Court as just another policy-making body and court justices as politicians. They claimed Barrett’s confirmation would result is a series of far-right legal victories. But the conservative justices are demonstrating a diversity of legal views that are neither uniform nor radical.
Health-care policy needs to be addressed, but that remains a task for Congress. The Roberts Court, with a now stronger conservative majority, intends to defer to Congress.
It should never be the Supreme Court’s responsibility to re-write health care law.
Jim Hartman is an attorney residing in Genoa. Email lawdocman1@aol.com.
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