During the Barrett confirmation hearing, we discussed the narrative of the Democrats and the media that the Affordable Care Act was dangling in the balance on the Supreme Court. With huge pictures of beneficiaries of the ACA displayed around the room, some Democratic senators actually said that Barrett was part of a conspiracy to rush her to the Court to kill the ACA. As I repeatedly said, the narrative was entirely disconnected from any legal reality since at least two conservative justices — Chief Justice John Roberts and Brett Kavanaugh — were likely to vote for severability and thus preserve the Act. They previously voted on similar cases. Today’s oral argument in It’s Obamacare day at the Supreme Court. In California v. Texas again exposed the unfair and unfounded narrative against Justice Barrett with both Roberts and Kavanaugh expressly reaffirming their positions on the severability. Will any of these senators or analysts now acknowledge that the hype in the hyperbole from the hearing?
In the hearing, Kavanaugh stated “Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision, and leave the rest of the act in place, the provisions dealing with pre-existing conditions and the rest.”
Roberts added that the case for severability in the ACA case is obvious and compelling: “It’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.” Roberts added that some might want the Court to strike down the whole Act “but that’s not our job.”
Both justices took the very positions that are obvious from their prior opinions. That gives an instant majority to preserve the Act. Yet, Democrats and many in the media struggled to fuel the notion that the law was at serious risk of being struck down before the election and used Barrett as a vehicle to advance that false narrative. The media did not even challenge repeated claims by senators that Barrett’s nomination was being pushed for this very purpose — a suggestion that was ludicrous on its face.
This is why I objected to the hearing narrative and displays:
The Democrats are reportedly planning to bring back the pictures of people who will be victimized by Barrett if she votes against the Affordable Care Act (ACA) in a case set for a November 10th argument. I have previously written how unfair and unprecedented this display has been for a confirmation hearing. Not only are Democrats now basing their confirmation votes on the expected vote of a nominee in a pending case, but they are misleading the public on the actual case. As I previously discussed, senators have been open about voting against Barrett unless she assures them that she will vote to preserve the Act. Sen. Mazie K. Hirono (D., HI) announced recently that she would vote against Barrett because “she will vote to strike down the Affordable Care Act.” In reality, the ACA case is unlikely to be struck down. The Court may uphold the lower court in declaring the individual mandate of the original ACA to be unconstitutional, but the real issue is whether that provision can be “severed” from the rest of the statute. Most legal experts believe that the Court has a clear majority favoring severance and preserving the rest of the act. The law was originally saved by Chief Justice John Roberts who felt that the individual mandate was constitutional. Congress later nullified the mandate. He and Justice Brett Kavanaugh are viewed as likely votes to sever. Even if the ACA were struck down however both parties are committed to the continued protection of pre-existing conditions.
None of that matters. The Democrats continue to parade these giant pictures that are designed to portray Barrett like some judicial serial killer surrounded by her victims. Now, they will not even be in the room. The pictures will be all that remains on the Democratic side, a fitting symbol of a now literal empty-sack strategy.
So again. As predicted, there appears at least five votes for severability. Yet, the Senate democrats and many in the media fostered this false narrative about the imminent death of the ACA and some directly accused Barrett of being a judicial shill to carry out a conspiracy on the Court. Like so many false narratives, it is likely to simply pass into the ether without further discussion or correction. Obviously, anything can still happen but today’s oral argument shows how this unrelenting narrative in the Senate and the media was maintained in willful disregard of the legal facts.