It wouldn’t have been easy to learn much of any substance from the carnival of splenetic elder-abuse that passed for a debate on Tuesday night. But one thing I did learn is that, at least for now, the Democrats’ arsenal of arguments against Amy Coney Barrett’s confirmation is remarkably bare.
Asked to opine on Judge Barrett in particular, Joe Biden pointed to Obamacare, saying:
Now, what’s at stake here is the President’s made it clear, he wants to get rid of the Affordable Care Act. He’s been running on that, he ran on that and he’s been governing on that. He’s in the Supreme Court right now trying to get rid of the Affordable Care Act, which will strip 20 million people from having health insurance now, if it goes into court.
Biden was referring to a case that now carries the evocative name California v. Texas (a name that could describe broad swathes of our politics), in which the Supreme Court will hear oral arguments November 10.
The case involves the constitutionality of Obamacare’s individual mandate. In 2012, a peculiar Supreme Court majority led by Chief Justice Roberts decided that, although such a mandate was not constitutionally authorized, it could be acceptable if it was understood simply as a tax on people without health insurance. In 2017, however, the Congress zeroed out the mandate — leaving it on the books but setting the penalty for lacking insurance at zero dollars, and so effectively ending it.
This change has had remarkably little effect on the operation of the rest of Obamacare. The individual mandate, which the law’s champions (and critics) considered essential to the scheme and for which Democrats expended significant political capital, appears not to have had a major effect, and zeroing it out therefore didn’t have much effect either. (As for how the rest of the system is doing, this overview from Bob Laszewski about a year ago still strikes me as basically right.)
But because the Court allowed the mandate (and perhaps the entire law) to survive only by treating it as a tax, a group of 18 state governments led by Texas now argue that, having been set at zero, the mandate penalty is no longer a tax, and therefore the mandate is no longer constitutional. They further argue that the mandate can’t be severed from the larger law, and therefore that the entirely of Obamacare has to be thrown out. The Trump administration has (more or less) sided with these states.
A federal district court ruled for those states in 2018, and in December of last year the Court of Appeals for the Fifth Circuit affirmed the ruling that the individual mandate is no longer constitutional but remanded to the lower court the question of whether the mandate can be severed from the rest of the law. And the Supreme Court has now taken the case.
If the Supreme Court agrees with the trial-court judge on both the unconstitutionality of the mandate and its unseverablity, then all of Obamacare would be thrown out. The Democrats argue that most of the Republican-appointed justices would rule this way, and that a Justice Barrett would too. And this now appears to be their main and most prominent argument against her confirmation.
It’s a very weak argument. As Ramesh Ponnuru noted this week, “It’s not just that there’s no basis to think that Barrett favors this legal challenge. There’s no evidence that any of the five Republican appointees currently on the Supreme Court do. A unanimous defeat remains a possibility.”
The main reason for that is the simple weakness of the states’ argument. The debate about the constitutionality of the mandate once the penalty is zeroed out is essentially meaningless as a practical matter, since the mandate is already inoperative. The key question is severability. And Congress has answered that question by effectively eliminating the mandate while leaving the rest of the law in place, thus severing it. The notion that the now-inoperative mandate is actually necessary for the functioning of the rest of the system created by the statute — a notion that rests on applying the intent of the 2010 Congress over that of the 2017 Congress when considering the situation created by the 2017 Congress’s act of legislation — is just simply ludicrous.
It is also worth seeing that the Supreme Court justices considering this case will be in a different situation than the lower-court judges who did so, because they will not be bound in the same way by the Chief Justice’s (highly dubious if not indefensible) reasoning in the 2012 Obamacare case. That decision binds lower-court judges, and so they have to work within its bounds, which can naturally lead to some very bizarre conclusions. But the Venn diagram of Supreme Court justices who approved of that decision and could conceivably rule that Obamacare should now be thrown out basically includes just John Roberts, and even he is not all that likely to apply his own past decision in this loopy way given Congress’s actions in the interim. Some of the Republican-appointed judges now on the Court did argue that the mandate was unconstitutional, but it’s hard to imagine them now accepting the notion that it remains unseverable after Congress has severed it.
What is more, if it really comes to that and the Court seems like it might rule this way, Congress could easily just make this case moot with a one-sentence bill that strikes the individual mandate from the law (at 26 USC. 5000A). The Court won’t rule until sometime next spring, so if the Democrats win the presidency and a Senate majority, they could easily do that, and might well get some Republicans to join them. If Republicans retain control, they could advance a bill that does that while also enacting into law the regulatory changes that the Trump administration has made to the implementation of Obamacare — and so essentially codifying the status quo. Such a bill could well appeal to enough Democrats to pass.
They could do that now. But neither party really wants to. The case serves them as a storyline. Republicans can keep talking about implausible scenarios in the wake of Obamacare disappearing and Democrats can keep talking about implausibly astronomical numbers of newly uninsured if Republicans get their Court nominee confirmed. Neither scenario is grounded in reality. The Court is exceedingly unlikely to rule for the states; Congress can easily render the case moot if it wants to; and the whole thing is just so much noise.
But that this is where the Democrats are directing their noise in the Barrett confirmation fight so far does suggest they have remarkably little to work with.