Democrats on Monday painted Judge Amy Coney Barrett, President Trump’s high court nominee, as an existential threat to the Affordable Care Act (ACA), allowing them to go on offense in the fight over the Supreme Court and the fast-approaching election.
Democrats view health care as a politically potent issue that resonates with voters and galvanizes their base with only 22 days left to go until Nov. 3, when they are hoping to win back both the White House and the Senate majority.
They are unlikely to be able to stop Republicans from placing Barrett on the court but plan to use the hearings to try to build political pressure on vulnerable GOP incumbents and mobilize voters in the final stretch of the election.
“Our message, as with this mask: Vote, number one, and number two, call the Republican senators because we don’t have some special procedural way to stop this sham,” said Sen. Amy Klobuchar (D-Minn.).
Sen. Richard Blumenthal (D-Conn.) added that Republicans “may win in this committee, they may confirm this justice but the American people can still stop it if they stand up and they speak out.”
At the start of the four-day hearings Monday, Democrats appeared eager to link Barrett’s likely confirmation to increased odds of the Supreme Court striking down ObamaCare, a threat that was made less abstract by the fact that the court is poised to hear a third major GOP-led challenge to the law on Nov. 10.
“Republicans in Congress tried and failed to reveal the ACA more than 70 times. It’s in the Republican Party platform for justices to reverse the ACA decision. Trump has over and over said this is his reason, and now we’re in this mad rush to meet their Nov. 10 argument deadline, and colleagues pretend this isn’t about the ACA. Right,” said Sen. Sheldon Whitehouse (D-R.I.).
Sen. Dick Durbin (D-Ill.) added that Democrats believe ObamaCare is “hanging in the balance” with Barrett’s nomination.
“We’re going to drive that issue home, though our colleagues on the other side may want to talk about judicial philosophy. Very interesting, but this is demanding,” he added.
The political ground has shifted dramatically since the justices agreed in March to take up the challenge to ObamaCare. The country has gone from enjoying historically low jobless numbers and fewer than two dozen coronavirus cases to seeing millions of newly unemployed Americans lose job-based health coverage and more than 214,000 die from COVID-19.
With just more than three weeks until Election Day, Democratic voters rank health care as their top issue at the ballot box, and 8 in 10 registered voters say health care is important to their vote choice, according to a poll released last week by Gallup.
Around 21 million Americans could lose their health coverage if ObamaCare is struck down, according to estimates.
Democrats successfully put health care at the center of their bid to win back the House in 2018 and have worked in recent weeks to duplicate that success as part of their strategy in the Supreme Court fight. To win back the Senate, they will need a net pickup of three seats and the White House or a total pickup of four seats for an outright majority.
As Monday’s hearing got underway, the Democratic Senatorial Campaign Committee (DSCC) released a new video arguing that the GOP push to fill Ginsburg’s seat put coverage for preexisting conditions and health care more broadly “at risk.”
Several GOP senators up for reelection are on the Senate Judiciary Committee, including Sens. Thom Tillis (R-N.C.), Lindsey Graham (R-S.C.), Joni Ernst (R-Iowa) and John Cornyn (R-Texas).
Whitehouse specifically called on Cornyn during Monday’s hearing.
“Sen. Cornyn has filed brief after brief arguing for striking down the ACA. He led the failed Senate charge to repeal the ACA in 2017. … Please don’t tell us this isn’t about the Affordable Care Act. From Cornyn job to Cornyn job to this nominee, hop, hop, hop. When Texans lose their ACA health care protections, hop, hop, hop to see whose doorstep that steps on,” Whitehouse said.
Cornyn, sitting across the room, could be heard scoffing at Whitehouse’s remarks. He later fired back on Twitter that Democrats “don’t want to talk about the judge except when disparaging her faith,” something they didn’t bring up on Monday, “or demanding a outcome in a future case as a quid pro quo for her confirmation. Outrageous.”
Trump and his GOP allies in Congress have long vowed to replace ObamaCare with a Republican health plan that offers the same protections for the 133 million people in the U.S. with preexisting conditions. But for many Americans, that promise rings hollow.
Despite Republicans having a decade to develop a plan and holding control of both chambers of Congress in Trump’s first two years in office, the GOP has been unable to pass a replacement for the Affordable Care Act.
GOP senators on the committee dismissed Democratic warnings that Barrett could be the deciding vote in the upcoming health care case.
“The left is also suggesting Judge Barrett’s confirmation would be the demise of the Affordable Care Act and the protection for preexisting conditions. That’s outrageous. As a mother of seven, Judge Barrett clearly understands the importance of health care,” said Sen. Chuck Grassley (R-Iowa).
Senate Majority Leader Mitch McConnell’s (R-Ky.) office also blasted out a release on Monday calling Democrats’ claims “hysterical” and noting that Barrett previously took part in a mock trial where none of the judges voted to strike down the entire Affordable Care Act.
Although it may make smart political sense for Democrats to paint Barrett as an existential threat to ObamaCare, the legal reality may produce a more complicated result.
The challengers, a group of more than a dozen Republican states, argue that Trump’s 2017 tax cuts effectively rendered a key provision of ObamaCare unconstitutional and therefore the entire health law should be struck down.
The GOP challengers note that the law’s original design depended on a requirement that most people purchase insurance and set up a tax penalty for noncompliance. But the Trump tax cuts zeroed out the penalty, which, according to the litigants, should cause the whole ObamaCare structure to collapse.
Court watchers say that even if the GOP challengers convince the justices that the health requirement provision is now illegal, they may face difficulty convincing the court to strike down the law in its entirety. Instead, the court could opt to simply remove the so-called individual mandate that makes the purchase of coverage compulsory while preserving the rest of the law.
Still, to preserve the law, the most likely scenario would involve the court’s three more liberal justices persuading two or more conservative members to join their ranks. Two previous GOP challenges to ObamaCare were rebuffed but only by razor-thin margins, including a 5-4 vote in a 2012 case and a 6-3 decision in 2015.
The decisive vote in the 5-4 case, National Federation of Independent Business v. Sebelius, belonged to Chief Justice John Roberts.
Democrats have pointed to a law review article by Barrett in 2017 — in which she criticized Roberts’s reasoning — as evidence of her hostility to ObamaCare, though she has never said directly how she would rule on the issue that will be heard by the court on Nov. 10
Grassley defended Barrett’s previous criticism of the 2012 Supreme Court ruling, saying it was “within the mainstream.” He urged Barrett to resist tipping her hand on how she would rule in the case next month.
“Judge, you’ll no doubt be asked how you will rule on questions and issues and whether the case was correctly decided,” he said. “I expect that you’ll follow the example of Justice Ginsburg. A nominee should offer no forecast, no hints of how he or she will vote because that’s the role of a judge.”