On Monday, the Senate Judiciary Committee began its confirmation hearings for Amy Coney Barrett, President Donald Trump’s nominee to fill Ruth Bader Ginsburg’s Supreme Court seat. Barrett is expected to be confirmed and join the Court this year, possibly before Election Day. This means that she could potentially rule on any election disputes, and it almost certainly means that she could rule on an upcoming case that may decide the future of the Affordable Care Act.
In Monday’s hearing, Democrats expressed concerns about how Barrett would rule on the case, known as California v. Texas, which challenges the law’s mandate that individuals “shall” buy insurance. In 2012, Chief Justice John Roberts joined the Court’s four liberals in a decision that preserved the A.C.A.; the majority’s rationale was that a penalty for not buying insurance was a tax rather than an unconstitutional act of coercion. In a law article from 2017, Barrett wrote that “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” an argument Democrats have pointed to during Barrett’s confirmation hearings as proof that she is all but certain to come down against it. At the hearings, Barrett has said that she did not believe that the Court was bound by precedent in considering California v. Texas, but added, “I assure you I am not hostile to the A.C.A.”
To talk about the case and the future of the Court, I spoke by phone, on Monday, with Nicholas Bagley, a law professor at the University of Michigan and an expert on health law and the A.C.A. During our conversation, which has been edited for length and clarity, we discussed why even conservative legal experts find this challenge to the A.C.A. so flimsy, other potential threats to the law, and what Barrett’s and Justice Brett Kavanaugh’s records suggest about future rulings.
How would you describe the Obamacare case that has made its way to the Court?
The case rises out of the Republicans’ efforts to dismantle the Affordable Care Act in 2017. They failed in that effort, and it doesn’t take a historian to reconstruct what happened, because we were all there.
This is John McCain’s famous thumbs-down.
Right. And so at the end of 2017, as a consolation prize, Republicans voted to eliminate the penalty for going without insurance, and every one of the Republican senators that spoke about it talked about the repeal of the individual mandate. The President has talked about the repeal of the individual mandate. Of course, that’s the functional result of what Congress did. It scotched the only mechanisms for enforcing the A.C.A.’s command to buy insurance.
The lawsuit arose when some clever Republican attorneys general saw an opportunity. And I have to say, right out of the gate, just describing the argument gives it more force and solidity than I think it actually has. It’s a difficult claim to even describe. I’m going to do my very best, but keep in mind that I view this as basically a ridiculous endeavor all the way through.
The way to understand the argument is to keep completely distinct in your mind the individual mandate, which is to say, the instruction in the Affordable Care Act that you shall buy insurance, and the penalty for going without insurance. Now, nobody actually thinks they’re separate. They’re one and the same thing. They’re obviously connected. But, if you keep those two things conceptually completely distinct, then you start to understand the argument, because when Congress eliminated the tax penalty for going without insurance it left language in the A.C.A. saying that you shall buy insurance.
Now the language didn’t have any force and effect after the penalty was eliminated, and the Supreme Court in 2012 had already interpreted that language as giving people a choice between buying insurance and going without it. And, because it was a choice, it’s not a coercive command. The Republican attorneys general said, no, what you need to understand is that “shall” language is best understood as a coercive command, as “You shall buy insurance.” We know from the 2012 decision that a coercive command is unconstitutional. And we know that the A.C.A. was only saved because it could be understood as imposing a tax, giving people a choice between buying insurance and paying the tax.
This was what John Roberts, voting with the four liberal Justices, ruled, correct?
Exactly. He also said, joining with the conservatives, that, if this were a statute that commanded people to buy insurance, that would be beyond Congress’s powers. But there’s a different way of reading the statute and giving people a choice, and that’s how I’m going to save the statute, he said. These Republican attorneys general say that, once the tax penalty has been taken away, there is no longer any choice in the matter, and thus no way to construe the Affordable Care Act to give people that choice. And, therefore, the only way to make sense of that word “shall” is as a coercive command. This is literally their argument. I’m not mocking it. They say that Congress made the Affordable Care Act more coercive when it eliminated the mandate penalty than when it was still in the law.
How?
With the tax penalty, you could construe the law as giving people a choice. Without the tax penalty, you can no longer construe the law as giving people a choice, in order to save its constitutionality. So you just have to give it its fairest reading, which on their view is imposing a coercive command, even though it’s a command that’s backed up by nothing.
There’s also the issue of whether they have standing, correct?
There are three big issues in the case, and the plaintiff has to run the table on all three of them. There’s a really big standing problem. There’s the merits issue that we were just discussing, and then there’s a severability question. On standing, the plaintiffs have a very weak argument. When the red-state attorneys general first filed this lawsuit, they immediately realized they had a big issue on their hands, because the individual mandate doesn’t apply to them—it applies to individuals. And so they scrambled, and they found two Texas consultants. They submitted this affidavit saying that they believed that they read the law to require them to buy insurance and that they felt compelled to comply with the letter of the law, even if it was unenforceable.
They’re not credible affidavits, to be totally candid. But that’s the basis for the argument that the states have standing.
And the severability?
Severability is the most audacious of the arguments, which is to say, if you believe that the individual mandate is unconstitutional in its current form, the proper remedy here is just to strike it down. Congress didn’t think it was necessary to the proper functioning of the act, and we know that because Congress eliminated the enforceable penalty at the same time that it maintained the rest of the law. But the challengers say, no, no, no—if you actually look at what Congress did, it left intact findings that Congress made in 2010, when it first adopted the Affordable Care Act. Those findings include statements that the individual mandate is essential to the operation of the law as a whole.
And the rationale for that, of course, is that the individual mandate, when it had a penalty attached to it, was thought to be necessary to bring people who are relatively healthy into the insurance market. Those findings don’t have any bearing on a mandate that is completely unenforceable, but the plaintiffs say that if Congress had meant to get rid of those findings it could have done so. It chose not to. Therefore, you’re stuck with the findings. Therefore, the individual mandate must be essential to the law as a whole. It basically serves as an instruction from Congress not to sever it from the rest of the law and, therefore, the entire law has to fall.
Some conservative intellectuals I’ve read have basically said this lawsuit is ridiculous, and that it’s not likely to lead to the overturning of the A.C.A. And that this case could be decided 7–2, or 8–1, with people like Samuel Alito and Clarence Thomas, perhaps, being in the minority. Is that also your sense?
I think that the gamble here was always to push the case, in the hopes that Justice Ginsburg would die and be replaced by a hard-line conservative, or that Trump would be reëlected by the time the case was heard. That’s always been the play. Chief Justice Roberts has turned away two much stronger challenges to the law, so it’s very hard to see how he’s going to vote to overturn the law. That said, the center vote in a case like this is likely to be Justice Brett Kavanaugh, but he’s shown himself to be more temperamentally aligned with Chief Justice Roberts in prior cases, and has given some indication that he might be skeptical of this case.
I also think it’s quite telling, and really important to notice, that the Republican establishment has not thrown its weight behind this lawsuit to anything like the same degree that they did in the first Affordable Care Act case. Prominent conservatives generally don’t support it. You have Republican senators running as fast as they can from it, in tight reëlection campaigns. There is very little amicus support from anything like credible, established outlets, including the business community. So you just don’t have the kind of full-throated cover that you’d like to give to the Justices if they were going to make a decision of this kind of magnitude.
Why might Kavanaugh be skeptical?
So now we’re reading tea leaves here, and I want to be clear that I think the odds that this case is successful are low, but a low-probability, high-cost event is worth worrying about. And I don’t know for sure. Frankly, nobody does. Kavanaugh seems like he’s at least possibly a tough vote for the challengers to get, because he really cares about limits on Article III standing. He cared in the D.C. Circuit, and he has cared on the Supreme Court. He has written about the need to salvage as much of Congress’s handiwork as possible when you’re doing the separability analysis. In other words, you start from the presumption that you save as much of the statute as possible. Whereas, this case is premised on the view that you strike down as much of the law as possible. Kavanaugh has written at length about that, even during the pendency of this lawsuit. So it’s possible you could read that as a signal about his views about this case, although you wouldn’t want to read too much into it, either.
The last thing is that, when he was at the D.C. Circuit, he actually was on a panel that heard the first of the Affordable Care Act cases. And he declined to rule on the law’s constitutionality, holding instead that there was a statute that precluded the court from exercising jurisdiction. He didn’t take a whack at the Affordable Care Act the way some of his fellow-judges did. But, in the course of his long analysis, he offered two thoughts that maybe the courts ought to be cautious about striking down laws that enlist the private sector in helping deliver public service. He thinks the Affordable Care Act is an effort to do that, and the individual mandate may be a way to make that function. And this is Kavanaugh showing off his roots in the [George W.] Bush Administration, which flirted with privatizing Social Security. So he’s got this model of using the private sector to deliver public programs, and maybe is a little bit more skeptical than his colleagues.
Do we have any sense of how Barrett might rule on these issues?
To be honest, not really. I think people who are trying to define her views about this particular case from back-forward interpretations of what she’s written, in the past, on issues at a much higher level of generality—it’s generally not going to be all that helpful. The best evidence we have is that she has written an article suggesting that she is sympathetic to the dissenters in the first Affordable Care Act case. Meaning that, if that case were decided in front of a 6–3 [conservative majority] Court, the Affordable Care Act is likely to have been put to the torch. But that’s not the case she’s deciding this time around. It’s very different than the original individual-mandate challenge. So I don’t know that you can get that much mileage from that.
She’s also sat on a moot court where this case was used as a model question. And I think it was a large panel, something like nine or ten judges, and apparently none of them voted to strike down the entire Affordable Care Act. Again, a mass vote in a hypothetical case in front of a law-school moot court: Does it tell us a lot? Not really. The most important thing you need to know about Judge Barrett is that she’s a product of the conservative legal movement, the one that the Federalist Society has supported for decades and that has inspired people like Chief Justice Roberts and Justice Kavanaugh and Justice Neil Gorsuch. And I have no reason to doubt that her jurisprudential views are aligned with theirs.
Is there another area where you think Obamacare could be vulnerable in the next four years or so, even if this specific challenge is rejected?
Yeah. What people miss about the Affordable Care Act is that it depends in large measure on executive-branch implementation, and the Court can either be a partner or an opponent in those efforts. So, right now, the most important case about health care that’s pending in front of the Supreme Court is probably not this lawsuit. It’s probably a case involving work requirements in Medicaid. A bunch of states have asked to impose work requirements on Medicaid beneficiaries in their states. The D.C. Circuit held that the waivers that the Trump Administration granted to allow states to impose work requirements were invalid, and the Trump Administration has since taken an appeal to the Supreme Court, asking them to hear the case and allow the Trump Administration to reinstate work requirements in the states. If that is successful, you’re going to see millions of people potentially lose their Medicaid coverage. That case is a difficult case [for the states to win] even with a 5–4 Court. Where, with a 6–3 Court, you’ve got a bigger margin for conservative skepticism about a lower-court ruling that held that work requirements were not something that Congress anticipated or contemplated for Medicaid.
I think, generally, people are thinking so much about this health-care law, but I’m still hung up on the fact that any future health-care law is likely to be threatened by a 6–3 Court. Again, the A.C.A. wouldn’t have survived with a 6–3 Court, and I don’t see any reason to think that a future health-care law passed by a progressive Administration will—or, for that matter, climate-change legislation, or legislation designed to address economic inequality, or what you will. There are just a lot of avenues to push back on whatever it is that the Democrats in office wish to do.
You have written critically about both the Trump and Obama Administrations regarding A.C.A. legal issues, arguing that neither Administration has followed the letter of the law in its implementation. Is that part of the reason the law has had such trouble?
In our current state of divided government and hyper-polarized political parties, there is a huge incentive for Presidents to go it alone, without trying to turn to Congress for new legislation. That puts a premium on executive-branch creativity, and at times that creativity can fly over into executive-branch lawlessness. And, on occasion, the Obama Administration, facing an unremittingly hostile Congress, I think broke the law in order to try to put it up on a solid footing.
What would be an example of that?
It sounds technical, but the Affordable Care Act doesn’t include language appropriating money for one of the most important financing streams of the Affordable Care Act. Normally, when there’s not an appropriation in a piece of substantive legislation, Congress will adopt an appropriation statute that will actually formally appropriate the money, and that appropriation language didn’t exist for the so-called cost-sharing payments [to help low-income families cover their insurance]. The Obama Administration had a real dilemma on the table. Either it could go to Congress and ask for the money, be rebuffed, and watch the Affordable Care Act topple, or it could come up with a highly creative legal argument–that frankly strains the bounds of credulity—to add them on anyway. And it chose the latter. So I just think Presidents have enormous incentive to go it alone, and that’s going to be true across Democratic and Republican Administrations. That’s not a function of different attitudes and respect for the law, I don’t think.
That said, the Trump Administration has done something quite different than the Obama Administration, which is that it has exercised its executive power in a deliberate effort to undermine a law, to pave the way for its undoing. And that’s really unusual. We haven’t seen that kind of deliberate effort to torch a congressional enactment or a major congressional initiative since Reconstruction. That’s not normal. Normal politics is that you pass a law, or you fight against it hard, and then when it comes time to enforce it you do it faithfully. I want to avoid the trap of false equivalence. What the Obama Administration did, I think, was unfortunate and a symptom of a much deeper problem in our politics. I think what the Trump Administration has done is truly aberrational.
