Douglas Kahn: There Is No Basis To Assume That Barrett Would Strike Down The ACA

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.

Professor Kahn is the Paul G. Kauper Professor Emeritus of Law at the University of Michigan.

17 thoughts on “Douglas Kahn: There Is No Basis To Assume That Barrett Would Strike Down The ACA”

  1. Was there an ACA in 1789?

    Answer: No, because a wholly unconstitutional ACA would have been laughed out of Congress in 1789.

    This ain’t your grandpa’s America; Constitution, it’s Karl Marx’s.

    This is not America.

  2. Even Roe couldn’t get it struck down. And it’s not just that one piece of legalality it’s three or four at Federal and State llevels including one I believe Pennsylvaniai that was used by the Supreme Court to uphold the viability clause. So remains just to reasons for this waste of time. First is the left wants to increase the limit to moment of birth ini preparation for going beyond. One of the reasons Mr.; Putin pointed the finger at the DNC as the same as the Communists of the USSR and therefore something he could work with. The second reason is to stir up a lot of much ado about nothing needed as it’s already settled to influence the elections. But no real reason just deceit described as spin and straight from the garbage pail.

    Ah yes Reason three . The reason the DNC primarily Schumer and Piglosi using it to further block any immigration with a path to citizenship for those from predominately Catholic countries who are for the most part anti abortion. Accouonts for them blocking the offer for the DACAs three times on the table by President Trump while the Democrats who invited them did NOTHING.’

    On this non starter since it’s already law it’s a waste of time and nothing but a dog and pony show .

  3. I would trust Barrett’s word as I would Susan Collins. Say one thing and do another.

  4. Congress has the power to tax for the “…general Welfare…,” deliberately omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, charity or redistribution of wealth.

    Article 1, Section 8

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;…

  5. If the law says “Penalty”, its a penalty! Roberts activist law making does not make it a “Tax”. Yes, it was a tax clad in a robe of a penalty because Pelosi did not want a tax increase in the democrats records, but once the law was written “penalty”, that became a penalty.

  6. “The record supports her statement that she decides cases on the basis of jurisprudential principles without regard to the outcome she might prefer.”
    When and if she does, she’ll be the first one. When you sit in policymaking positions regardless of the title, you always consider the effects of the outcome and most especially the effects on the outcome on you.

      1. Arty:

        “Since when is a judge a ‘policy-maker’?”
        Since forever (or Marbury to be technical) and If you mean other than theoretical, they always were since the time of the Chancery Courts in the UK. When you get to interpret policy made by others — legal, administrative or legislative — you are precisely a policy maker. Some might say you’re the ultimate policy maker ’cause you’re where the rubber meets the road. Roe is a perfect example: Under the rubric of the “right to privacy” (whose text you find nowhere in the Constitution but with underpinnings from due process clause of the 14th Amendment) the supposed non-policymaking SCOTUS developed a whole body of abortion rights in direct contravention to the laws of about 48 states whose theoretical “sole policymakers” deemed abortion illegal under some or all circumstances. Of course, the Court was cribbing the reasoning from a whole body of theological work as well as the philosophy of Aristotle that allowed some abortions before the “quickening” (ensoulment), animation or viability. Regardless, they substituted their reasoning for that of state legislators making them policymakers.

          1. you need to read “How to Win Friends & Influence People“
            by Dale Carnegie

            so that you can…..

            Get you out of a mental rut, give you new thoughts, new visions, new ambitions.
            Enable you to make friends quickly and easily.
            Increase your popularity.
            Help you to win people to your way of thinking.
            Increase your influence, your prestige, your ability to get things done.
            Enable you to win new clients, new customers.
            Increase your earning power.
            Make you a better salesman, a better executive.
            Help you to handle complaints, avoid arguments, keep your human contacts smooth and pleasant.
            Make you a better speaker, a more entertaining conversationalist.
            Make the principles of psychology easy for you to apply in your daily contacts.
            Help you to arouse enthusiasm among your associates.

          2. Arty:

            I use this one from BLD: “Policy: The general principles by which a government is guided in its management of public affairs, or the legislature in its measures. This term, as applied to a law, ordinance, or rule of law, denotes its general purpose or tendency considered as directed to the POLICY “

      2. The judicial branch has no authority to usurp the power of the legislative branch.

        “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

        “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

        – Alexander Hamilton

  7. Is it the case that the law can still be theoretically legal without the mandate but as a practical matter no insurance market can function with that construct and a death spiral (which we have always seen) is inevitable. This is the fatal flaw in the original design of Obama care. Designing a traditional health insurance product that is afforadble, has guaranteed issue and protection for pr-existing conditions is literally impossible without an adequate risk pool.

    1. Nowhere in the Constitution is charity mandated.

      Charity is a funciton of a humane or philanthropic, free market enterprise.

      From 1789 thru FDR’s Great Depression, there was no legislation mandating any form of individual welfare, specific welfare, charity or redistribution of wealth.

      FDR implemented programs derived from the principles of communism.

      Obamacare is not welfare for “…general…” or all citizens.

      Obamacare is individual welfare, specific welfare, charity or redistribution of wealth.

      Obamacare is irrefutably unconstitutional.

      Obamacare has no basis in or relationship to the U.S. Constitution.

      Obamacare comes from the thesis of Karl Marx below:

      “From each according to his ability, to each according to his need.”

      – Karl Marx

  8. I think Judge Barrett is in line with Chief Justice Roberts. She just thinks he shouldn’t have done it.

    1. Roberts commingled the definitions of the words “state” and “federal” to provide a false, unconstitutional rationale for the Obamacare “exchanges.”

      Roberts illicitly and egregiously acted in political form not jurisprudential form.

      In a perfect, constitutional world, Roberts would have been impeached and convicted for dereliction, abuse of power, usurpation of power and nullification of the Constitution.

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