We occasionally have the opportunity to publish columns from other academics on pressing legal or political issues. In the column below, Professor Douglas A. Kahn discusses the charge that Judge Amy Coney Barrett would clearly vote to strike down the Affordable Care Act (ACA) in the pending case of California v. Texas. Professor Kahn is the Paul G. Kauper Professor Emeritus of Law at the University of Michigan. He taught for decades at Michigan and has written a host of books and articles in his distinguished career. He is also a graduate of our law school at George Washington University. It is my distinct honor to post his thoughts on the ACA issue below.
The opposition to the nomination of Judge Amy Barrett to the Supreme Court rests primarily on the contention that a nomination should await the result of the presidential election. To garner public support for that opposition, some senators have stated that the writings of Judge Barrett show that she would vote to hold the Affordable Care Act (ACA), commonly known as Obamacare, invalid as unconstitutional. That contention is incorrect; there is nothing in her writings to indicate how she would vote on that issue.
The apparent basis of the contention that Judge Barrett has shown her hand on this issue is an essay that she wrote in which she commented on the opinion that Chief Justice Roberts wrote for the majority in the Supreme Court’s decision in National Federation of Independent Business v. Sibelius, a 2012 decision involving Obamacare (ACA). To understand what Judge Barrett wrote, it is necessary to understand what was decided in the Sibelius case.
As originally adopted, the ACA contained an individual mandate – that is a requirement that an individual have medical insurance or pay a penalty. A major issue in Sibelius was whether the individual mandate was invalid because Congress was not authorized to impose a penalty for failing to purchase an item. Justice Roberts held that if the required payment for noncompliance was a penalty, as described in the statute, it was invalid, and four Justices agreed with that holding. Roberts then held that contrary to the statutory language, the required payment was a tax which congress is authorized to impose, and four Justices agreed with that holding. To reach that conclusion, Roberts relied upon a canon of statutory construction that when the meaning of a statute would make the statute unconstitutional and when a different construction of the meaning would be valid, a court should adopt the latter meaning even if it unlikely to have been the one the legislature intended so long as it is a possible construction. Thus, in explaining why he chose to construe the required payment as a tax, Roberts said that the question is “not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”
Congress subsequently deleted the individual mandate from the ACA. The current challenge to the validity of the ACA questions whether it can be valid when there is no individual mandate. That issue was not raised or discussed in Sibelius.
In her essay, Judge Barrett stated her view that the holding of the required payment as a tax was incorrect. That view is in accord with an article she wrote in 2010 (two years before Sibelius was decided) in which she concluded that the canon to construe a statute so as to uphold its validity is a bad doctrine and should not be followed. Judge Barrett maintained that a statute should be construed to have the meaning that congress intended and not rewritten to avoid its being held invalid. However one stands on that issue, it has nothing to do with the question of whether the ACA, without an individual mandate, is valid. Judge Barrett made no statement concerning the validity of the ACA nor did she make any statement suggesting how she might rule on it. Her views on statutory construction are part of her approach to legal process and have nothing to do with her normative views. The record supports her statement that she decides cases on the basis of jurisprudential principles without regard to the outcome she might prefer.