Media, Politics, Supreme Court

A Conspiracy Collapses In The Court: Justices Appear To Confirm A Majority In Favor Of Preserving The ACA

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.

131 thoughts on “A Conspiracy Collapses In The Court: Justices Appear To Confirm A Majority In Favor Of Preserving The ACA”

  2. Go figure, Turley. People concerned about what Barrett might do based on her previous publicly stated opinions about the ACA. The court is doing a bit of political posturing, stepping out of the way of the dog actually catching the car, etc. since to actually remove the act right now would be one of the most self destructive and suicidal actions the nation ever took.

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  4. Off topic. Pope and his gueers. I say “his queers” because the Pope is in control of all those priests in the world. Pass a rule called No Queers Allowed. Give a mental exam for each applicant. If they do a queer crime on a human under age 21 then cut off the priest”s private parts and have them put in jail.

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  6. Although I don’t remember the specific details, I do recall that the initial challenge to ACA in the Supreme Court had to do with whether or not it was a tax. If it were determined to be a tax, it would have been unconstitutional. I do distinctly recall that 4 out of 9 believed ACA to be unconstitutional at the time that it was initially shoved through. I am therefore confused that ACA could have been “saved” by determining that it is, in fact, a tax. I understand that at issue here is the severability. Fine. I wonder if the mobs calling to pack the Court will be assuaged but I doubt it. That’s not how mobs operate.

    1. No – if it was determined to be a tax, it WOULD be constitutional. Originally it was written as a fine or penalty if one didn’t sign on to aca, which is the government forcing people to buy something, and is unconstitutional. Congress MAY levy taxes, but it MAY NOT force people to buy something.

      roberts was instrumental in saying that even though the law said it was a fine, it was actually a tax (roberts rewriting the law), so it was constitutional.

    2. roberts characterized it as a tax- in contrast to obama et. al- in order to preserve the bill- as a tax it was constitutional under congress’s taxing authority

  7. This is a blog by a law professor?

    These commenters know something about the law?

    😯

  8. THIS IS WAR
    __________

    In 1861, President of the United States Abraham Lincoln took two steps intended to maintain order and public safety in the now-divided country.

    In his capacity as commander in chief, Lincoln declared martial law in all states and ordered the suspension of the constitutionally protected right to writs of habeas corpus in the state of Maryland and parts of the Midwestern states.

    – Robert Longley
    ______________

    Democrats have criminally engineered, corrupted and commandeered the U.S. election process commencing Civil War II.

    President Trump must declare martial law, suspend Habeas Corpus, prosecute the criminal election fraud perpetrators, seize voting apparatus in all 50 states and conduct a complete recount of “legal” votes.

    1. “If you look at Florida where things were done right, you can see that that’s how the rest of the country should have gone.”

      “But they also used an algorithm to calculate the votes they would need to flip.”

      “And they used the computers to flip those votes from Trump to Biden.”

      “And from other republicans candidates to their competitors also. I think Doug Collins had the race stolen from him. I think John James had his race stolen from him.”

      “When the votes are really audited and the real votes are counted, Trump will win.”

      “He is the President and he is in charge of this country.”

      – Sidney Powell

    1. REGARDING ABOVE:

      The Postal System is currently controlled by Trump appointees. So theoretically postal leadership should be friendlier to Trump than Biden. Therefore this ‘scandal’ is tailored to stupid people warped by ‘Deep State’ conspiracies.

  14. Turley predictably directs his fire at Democrats & the media & of course refuses to acknowledge the very reason this case once again ended up in the Supreme Court is due to the longstanding efforts by Trump & Republican to strike down the Affordable Care Act. Turley is well aware Republicans attacked Chief Justic Roberts for twice casting the deciding vote to save the ACA.

    Despite Fox News latest poll showing 64% of Americans want Obamacare to be kept in place, Trump & Republicans want to kill the ACA. Turley clearly knows that but instead goes after Democrats & the media for correctly identifying the clear intentions of Trump & the Republicans for yet again bringing this case to the Supreme Court.

    1. And your point is exactly what???

      Yes, the GOP wanted to get rid of the ACA – is anyone denying that? No.

      Polls show that Americans want it. OK, so what? You can do a poll asking if they wanted a free lunch and they’d say yes. The “Americans want” by popular opinion is always a dumb argument.

      What really is happening here is that the justices appointed by conservatives are doing exactly what they promised to do – interpret the law as it was intended, not how they want it to be.

      As such, if you want to complain about the GOP, complain those who are being hypocrites for that reason.

      2. If they wanted it, they would buy it. Congress wouldn’t have had to add provisions forcing people and companies to buy it.

    2. I applaud their tenacity in trying to rid the taxpayers of yet another drain on our resources.

        1. “Kenneth, we’ve never seen you before. Just popped out of nowhere?”

          Great question. Next, ask him what color socks he wears, and what he had for breakfast.

          1. Kenneth, I got the same inquisitive message from that person yesterday. I should have told him I just landed, halo intact… 0;-)

            1. Yeah, merighen, we’ve seen you before. Funny how that goes. Total strangers pop out of nowhere to buttress a Trump-friendly point, then they disappear never to comment again. It happens on these comment threads with amazing frequency.

    3. “Turley predictably directs his fire at Democrats & the media”

      LOLOL And you predictably whine like an infant who crapped his diapers.

      And predictably, you’ll be back for more. See ya tomorrow.

    5. The Constitution does not say,” Do anything you like.”

      Congress is severely limited and restricted in its ability to tax.

      Congress cannot tax for individual welfare, specific welfare, charity or redistribution of wealth.

      You’re dreaming of the Communist Manifesto.

      You are the enemy of the United States of America.

      The ACA is unconstitutional and the ACA cannot be taxed for.

      Please cite wherein you conjure constitutionality.

      You cannot.

      You will not.

      That 64% of parasites pretending to be Americans want “free stuff” is not material and does not bear.

      The Constitution protects free Americans from parasites.

      You just can’t grasp the scope and breadth of American freedom.

  15. First of all, Turley, there hasn’t been a ruling yet. Secondly, Democrats didn’t make up the law review writings of Barrett in which she argued against the constitutionality of the ACA. Third, Trump promised to get the ACA overturned, which he failed to do legislatively, and he promised to deliver SCOTUS judges who would do that, as well as overturn Roe v. Wade, another matter of which Barrett has written, so was it really outrageous for there to be concern about this? No. Twenty million or more Americans losing health care coverage when there’s a pandemic out of control is as serious as it gets.

    But, as usual, Turley never lets a chance go by to criticize Democrats and the media.

    1. Turley is correct and…(drum roll)…(heck, one more drum roll to liven up the crowd)…Trump will be sworn in come January.

      Get ready for Voter ID law.

      ACB is going to be a great judge.

          1. mespo727272, the count wasn’t over two days after Trump was elected ini 2016 either, yet he proclaimed Clinton had been defeated, and I bet you did too.

            Enough of the count has been completed to know that Trump has been defeated.

              1. That she conceded is irrelevant to the count not having been complete.

                Trump is too big a narcissist to concede. He’s still been defeated. He cannot catch up at this point.

        2. At this point in time, it is absolutely baffling that anyone with a room temperature IQ has not at least considered the improbability of all the late-night ballot dumps in favor of Biden, and the likelihood of fraud that it raises.

          You almost have to be willfully blind.

          1. Joe Biden’s political Career by year:
            1973 Biden enters politics
            1974
            1975
            1976
            1977 Biden fights to keep schools segregated because “allowing blacks to integrate would create a racial jungle”
            1978
            1979
            1980
            1981
            1982
            1983 Biden taxes SS
            1984
            1985
            1986
            1987
            1988 Ran for president but had to end it after getting busted for plagiarism
            1989
            1990 C’mon man, almost there
            1991
            1992
            1993 Biden taxes SS again
            1994 Biden writes the stop and frisk law which is what African Americans blame for systemic racism today
            1995
            1996
            1997 Almost, not yet because y’know the thing
            1998
            1999
            2000
            2001
            2002
            2003
            2004
            2005
            2006
            2007
            2008 Calls Obama the first articulate and clean mainstream African American
            2009
            2010
            2011
            2012
            2013
            2014
            2015
            2016
            2017
            2018
            2019
            2020 and now he’s ready to “FIX” the Country.

            Imagine being so dumb that you think the guy in office for 4 years is the problem and the guy in office for 47 YEARS is the solution

            1. It isn’t a matter of 4 years vs. 47. It’s a matter of Trump being a criminal and a sociopath and Biden being neither.

              1. It’s a matter of Trump being a criminal and a sociopath and Biden being neither.

                Well Paint Chips, this is the point where you need to prove your allegations. If you don’t, then you will have once again proven to everyone how you earned your moniker.

                This is a public service announcement. Hold your applause.

                Bwahahahahaha! 😁

              2. It’s a matter of Trump being a criminal and a sociopath and Biden being neither.

                Well, we have one person who hasn’t figured out what Hunter Biden and his uncle do for a living.

              3. OOPS, you made an assertion you cannot defend. It is your opinion Trump is those things. It is my opinion Biden will say and do anything to benefit himself while serving no one but himself. It is my opinion Biden has taken money for acting counter to the interests of the people he represents. It is my opinion Biden, unlike Trump, is completely devoid of ethics and merit. As it is my opinion, my conversation here ends with this post.

          2. On the contrary, “anyone with a room temperature IQ” would expect the mail-in ballots to favor Biden because Trump kept calling them fraudulent, so fewer Republicans were likely to use them. You’d almost have to be willfully blind to believe that there was significant fraud.

    2. “But, as usual, Turley never lets a chance go by to criticize Democrats and the media.”
      *********************
      As Churchill once said of Clement Atlee, the Dims are a humble party with much to be humble about. And to paraphrase Churchill yet again on the same topic but in the inverse, the current Dims are wolves in wolves’ clothing.

      1. He also saiid, “Liberalism supplies at once the higher impulse and the practicable path; it appeals to persons by sentiments of generosity and humanity; it proceeds by courses of moderation. By gradual steps, by steady effort from day to day, from year to year, Liberalism enlists hundreds of thousands upon the side of progress and popular democratic reform whom militant Socialism would drive into violent Tory reaction … The cause of the Liberal Party is the cause of the left-out millions.”

        1. Aninnymouse:

          “Liberalism supplies at once the higher impulse and the practicable path; it appeals to persons by sentiments of generosity and humanity; it proceeds by courses of moderation…”
          ************************
          He said that in 1909 at age 35 before the rise of the Bolsheviks and the corruption of classic liberalism by the Left into socialsim. He died a conservative saying after WW2 in 1948 that ““Socialism is the philosophy of failure, the creed of ignorance, and the gospel of envy.” He grew up. The Left today has not.

          Try to understand the man before you quote him.

    3. But, as usual, Turley never lets a chance go by to criticize Democrats and the media.

      Both are targets the size of Kate Smith’s rear end. If they don’t wish to be criticized, they can stop behaving like criminals.

    4. So you don’t find these people to have any responsibility to provide their own health care? Nothing will do but that you and I pay for theirs as well as our own?

    5. Judge Amy Barrett’s confirmation hearings were stellar.. Senator Feinstein asked Amy to define “ the doctrine of sever ability”. Amy’s response let me understand better why Justice Roberts sided with the ACA when I thought the whole thing should be pitched. With her definition I realized I did not have the legal foundation to understand the principles behind the decision. The SCOTUS will not end the ACA. This doctrine is fundamental to keep everything done in the legislature from being tossed on technicalities and/or when striking down unenforceable, non-severe points. After years of disdain, I understand and appreciate Robert’s position; he was right.

  16. President-elect Biden has just finished speaking about the oral arguments in this case. Instead of unifying the country by praising the Supreme Court as an institution – including the quality of its conservative Justices and the depth of their severability inquiry – he took an early sentence to blame California v Texas on “right-wing ideologues.” This missed opportunity aside (or this positioning of his administration to the Left firmly established), President-elect Biden’s comments were constructively aimed at reinforcing the strengths of the ACA, not “packing” the Supreme Court.

    1. Who brought this lawsuit (the third appeal of the ACA brought before the SCOTUS) in the first place? Biden pointing out that the Republicans won’t give it a rest is spot-on. Republicans have tried legislatively about 70 times to strike down the Act, even though they have nothing to replace it with.

      1. The question, Natacha, is not who brought the lawsuit.

        Your sophomoric attempts at diversion get more feeble every day.

      2. Should Republicans give it a rest at the current $0 penalty, or a new penalty yet to be re-instated?

        From Wikipedia on NFIB v Sebelius (2012):

        https://en.wikipedia.org/wiki/National_Federation_of_Independent_Business_v._Sebelius

        Chief Justice Roberts:

        “The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”

        Joint Dissent:

        “In answering that question [whether the individual mandate is independently authorized by Congress’s taxing power] we must, if “fairly possible”, Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute … ‘ or judicially rewriting it.” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used”, Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.”

        If SCOTUS again finds the individual mandate constitutional, Biden has said he will attempt to reinstate the penalty:

        “Joe Biden, former vice president and 2020 Democratic presidential hopeful, said Friday he would bring back the individual mandate, the penalty for not having health insurance, which was a pillar of the Affordable Care Act.”

        https://www.cnbc.com/2019/07/05/joe-biden-vows-to-bring-back-obamacare-individual-mandate-penalty.html

        It sounds like Biden, a co-originator of the ACA, believes in the inseverability of the penalty from a fair and fully functioning ACA system.

    2. “President-elect Biden”

      At least he’ll be able to say that he was briefly the media’s designated President-elect.

      That is, if he can remember…

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  18. I do not have a position at this moment on the issue of severability.

    It is my view that the PPACA is unconstitutional regardless.

    But Turley’s point is well taken. The left continuously sells us “end of the world” scenarios that never come true.

    PPACA did not alter the life expectancy curve one iota, flushing it down the toilet would not have resulted in thousands of deaths.

    In fact no study anywhere ever – and there have been many has found any positive link between health insurance and healthcare outcomes. Insurance provides financial security it has nothing to do with healthcare.

    1. Comrade Roberts correctly declared the ACA unconstitutional as a mandate to purchase a commercial product.

      Comrade Roberts quickly pivoted to “it’s a tax.”

      Congress cannot tax for individual welfare, specific welfare, charity or redistribution of wealth – Congress has the power to tax ONLY for “…general Welfare.”

      Game Over.

      Corruption Commenced.

      The entire American welfare state is unconstitutional and only valid under the Communist Manifesto, specifically, “From each according to his ability, to each according to his need.” Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now. Government exists in America solely to provide maximal freedom to individuals, while it is severely limited and restricted to merely facilitating that maximal freedom of individuals, through the provision of security and infrastructure.

      1. George, is everyone who disagrees with you a communist, or is it possible to disagree with you without being a communist?

            1. So I guess you are no longer supporting the Bidens/Clintons/Bushs/ Dim/Rino Satin worshipping Pedophiles!

              And your support Biden’s daughter’s story Joe is a GD pedo.

              There’s no middle ground here, you’ll need to show who you are.

            2. Oh, I see now, by your silent obedient consent you are supporting the Bidens/Clintons/Bushs/ Dim/Rino Commie/Fascist type authoritarians that are largely Satin worshipping Pedophiles!

              “Common Man”

      2. The US Supreme Court is a mockery of justice. The whole system is based of words juggling as you demonstrated with Roberts’ “it’s a tax”.
        Kavanaugh is the same type as Roberts: Bush school of talking nonsense.

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