During the hearings on the nomination of Amy Coney Barrett, Democrats on the Senate Judiciary Committee pretended that confirming Barrett would jeopardize Obamacare. To support this claim, they noted that the Supreme Court soon would be hearing a challenge to that law and they pointed to a law review article by Barrett that criticized Chief Justice Roberts’ reasoning when he upheld Obamacare in 2012.
The Dems’ argument was always phony. Barrett’s critique of Roberts had nothing to do with the issue before the Court now — severability, i.e., whether the whole of Obamacare must be invalidated if the individual mandate is found to be unconstitutional (now that the mandate can no longer be considered a tax). As we noted at the time, the votes aren’t there to invalidate the entire Act, regardless of how Barrett might vote. Nor was it clear that she would vote to invalidate the Act.
Today, the Supreme Court heard argument in the case in question. The Chief Justice and Justice Kavanaugh could hardly have been more clear that they don’t buy the argument in favor of invalidating the statute. Thus, at a minimum, there are five votes to reject the challenge. I wouldn’t be surprised if there are more than five.
It’s hard for you to argue that Congress intended the entire act to fall when the same Congress that lowered the [tax] penalty to zero didn’t even try to repeal the rest of the act. They wanted the court to do that, but that’s not our job.
Under the severability question, we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed. And here Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question
I tend to agree [that] this is a very straight forward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place. . .[I]t does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place.
Justice Alito was also skeptical of the argument for striking down Obamacare just because the individual mandate has been negated. “There was a strong reason to think of the mandate like a part of an airplane that was essential to keep it flying,” Alito said. “But now it has been taken out, and the plane has not crashed. So how would we explain that the mandate in its present form is essential to the operation of the act?”
Senate Democrats knew the Supreme Court wasn’t going to invalidate Obamacare in the case before it. Yet, they relied on their bogus talking point in the hope of turning the country against Amy Barrett and winning control of the Senate in this year’s election.
They didn’t accomplish the first objective. And, whatever happens in Georgia, they didn’t advance the ball on the second. In fact, Sen. Joni Ernst, a Judiciary Committee member who was behind in the polls at the time of the Barrett hearings, won reelection fairly handily.
In politics, lying often pays. However, it didn’t pay in this instance.