Democrats’ Hysterical Health Care Claims ‘Collapse Under The Slightest Examination’

Reminder: The 2017 Tax Law Eliminated The Obamacare Individual Mandate Penalty

“It's official. Congress has ushered through the first major tax overhaul since Ronald Reagan was president…. [T]he individual mandate on health insurance has been scrapped…. The elimination of the individual mandate, which penalizes people who do not have health care, goes into effect in 2019.” (“34 Things You Need To Know About The Incoming Tax Law,” CNN Business, 12/26/2017)

• “In fact, [Obamacare was] barely touched. What was repealed — effective in 2019 — was the requirement that nearly everyone have insurance or pay a penalty at tax time.” (USA Today, 12/21/2017)

“Congress did ultimately chop off a leg [of Obamacare] when the mandate penalties were eliminated as part of the 2017 tax bill — and, despite these predictions, the Affordable Care Act still stands. New federal data and economic research show the law hasn’t collapsed or entered the ‘death spiral’ that economists and health insurers projected. Many experts now view the individual mandate as a policy that did little to increase health coverage — but did a lot to invite political backlash and legal challenges.” (The New York Times, 9/18/2020)

Therefore Judge Barrett’s Discussion Of Chief Justice Roberts’ Opinion On The Constitutionality Of That Mandate Is No Longer Relevant

FACT: Amy Coney Barrett was writing about Chief Justice Roberts’ interpretation of the constitutionality of the Obamacare individual mandate, but the article was published in January 2017, nearly a YEAR BEFORE Congress eliminated the mandate. (Amy C. Barrett, “Countering the Majoritarian Difficulty,” 32 Const. Comment. 61 (2017) (book review))

FACT: Barrett said in 2012, “I think the dissent has the better of the legal argument. That’s not to say that the result isn’t preferable. I mean it’s clearly a good result that these millions of Americans won’t lose their tax subsidies.” (“SCOTUS Upholds State Health Care Subsidies,” NPR, 6/25/2015)

FACT: Barrett specifically noted Justice Ginsburg’s view, quoting her concurring opinion, and writing, “The other four justices in the majority on this issue would not have needed to construe the penalty as a tax to save the statute, because they thought that the Commerce Clause authorized Congress to impose the mandate.” (Amy C. Barrett, “Countering the Majoritarian Difficulty,” 32 Const. Comment. 61 (2017) (book review))

Further, During A Moot Court Exercise That Judge Barrett Participated In, ‘None Of The Judges Ruled … To Strike Down The [Obamacare] Law’

“Judge Amy Coney Barrett, President Trump’s nominee to the Supreme Court, has already weighed in on one of the most significant and controversial cases it is scheduled to consider this fall — albeit in a mock exercise. And, contrary to what many Democrats fear, her position on the moot court that considered the Affordable Care Act, also known as Obamacare, went mostly against the Trump administration’s stance.” (“Trump Supreme Court Pick Already Ruled On Pending Obamacare Case — In A Moot Exercise,” The Los Angeles Times, 10/01/2020)

• “Just one week before the death of Justice Ruth Bader Ginsburg, whom she has been nominated to replace, Barrett participated in a mock court hearing on the pending case. She was part of an eight-judge panel that heard the mock arguments, conducted at William & Mary Law School.” (“Trump Supreme Court Pick Already Ruled On Pending Obamacare Case — In A Moot Exercise,” The Los Angeles Times, 10/01/2020)

• “None of the judges ruled in favor of the administration and Republican states’ request to strike down the law. Five of the judges ruled that one part of the law — the so-called individual mandate, which Congress has already effectively nullified — was unconstitutional, but that the rest of the healthcare law could stay in place. The other three judges would have thrown out the case, arguing that the conservative states challenging the law did not have standing to bring the suit. It’s not known which side Barrett was on because the participants’ votes were not revealed, according to a person who viewed the session and declined to be identified.” (“Trump Supreme Court Pick Already Ruled On Pending Obamacare Case — In A Moot Exercise,” The Los Angeles Times, 10/01/2020)

Legal Experts Say The Lawsuit Against The Affordable Care Act ‘Doesn’t Have A Good Chance Of Succeeding,’ ‘This Case Is Ridiculous, And Everybody Knows It’

“U.S. Supreme Court nominee Amy Coney Barrett’s comments suggesting she backed challenges to the Obamacare healthcare law do not ensure she would vote to invalidate it in an upcoming case, despite Democrats’ claims to the contrary.” (“Barrett High-Court Vote Against Obamacare Not As Certain As Democrats Claim,” Reuters, 9/29/2020)

• “But the ruling might not be on ideological lines, and the law is unlikely to be struck down, legal experts said, with even some lawyers who backed previous Obamacare challenges saying the lawsuit lacks merit.” (“Barrett High-Court Vote Against Obamacare Not As Certain As Democrats Claim,” Reuters, 9/29/2020)

• “The legal argument in the new case is that Obamacare is now unlawful in full because tax legislation passed by Congress in 2017 eliminated the financial penalty imposed on people who do not have health insurance. The challengers argue that if there is no longer a tax penalty, then the whole law must fall. But critics of the lawsuit said that there is no reason why the rest of the law should be struck down even if the tax penalty provision is now deemed unconstitutional. … In recent cases with conservative justices in the majority, the court has declined to strike down an entire statute just because one part was unlawful.” (“Barrett High-Court Vote Against Obamacare Not As Certain As Democrats Claim,” Reuters, 9/29/2020)

JOHNATHAN ADLER, Case Western Reserve University Law Professor: “The case law cuts pretty decisively against the claims made by Texas.” (“Barrett High-Court Vote Against Obamacare Not As Certain As Democrats Claim,” Reuters, 9/29/2020)

NICHOLAS BAGLEY, University of Michigan Law Professor: “I think the lawsuit probably doesn’t have a good chance of succeeding…”  (“Barrett High-Court Vote Against Obamacare Not As Certain As Democrats Claim,” Reuters, 9/29/2020)

PAUL CLEMENT, a Lawyer Who Represented the 2012 Obamacare Challengers: “[The challengers] have a very uphill battle.” (“Barrett High-Court Vote Against Obamacare Not As Certain As Democrats Claim,” Reuters, 9/29/2020)

ILYA SOMIN, George Mason University Law Professor: “Even if Amy Coney Barrett decides that it's not severable — and there's no reason for thinking that she would decide that, but hypothetically, let's say that's her view — I think there still won't be five votes for that proposition on the Supreme Court.” (“Will Barrett Deliver Pivotal Vote To Strike Down The ACA?,” Law360, 9/29/2020)

Judge Barrett ‘Is Not Going To Vote In This Case To Strike Down The Affordable Care Act… This Case Is Ridiculous, And Everybody Knows It’

“But legal experts with varied ideological views told Law360 they aren't sure Judge Barrett will further agree that the mandate's importance means the entire ACA, or at least its protections for Americans with preexisting conditions, must fall as a result.” (“Will Barrett Deliver Pivotal Vote To Strike Down The ACA?,” Law360, 9/29/2020)

• ERIC SEGALL, A Left-Leaning Constitutional Law Scholar At Georgia State University: “She [Judge Barrett] is not going to vote in this case to strike down the Affordable Care Act… This case is ridiculous, and everybody knows it.” (“Will Barrett Deliver Pivotal Vote To Strike Down The ACA?,” Law360, 9/29/2020)

• STUART GERSON, A Former High-Ranking U.S. Department Of Justice Attorney In Republican And Democratic Administrations: “It wouldn't surprise me, assuming that Judge Barrett is confirmed as a justice, that she well could go along with a significant group of other justices and hold that the offensive provision is severable, and the rest of the ACA can go on… So, in a sense, both the easy way out and probably the right way out is just to sever the noxious provision.” (“Will Barrett Deliver Pivotal Vote To Strike Down The ACA?,” Law360, 9/29/2020)