The real danger Amy Coney Barrett poses to ObamaCare

Democratic presidential nominee Joe Biden has chosen to focus on health care as the principal concern raised by the Supreme Court nomination of Amy Coney Barrett. The press has zeroed in on one of her writings, which is remarkably sympathetic to earlier challenges to ObamaCare. But the issues in those cases are unlikely to come before her. The real danger lies in her more general willingness to entertain lousy legal arguments for anti-ObamaCare results.

Republican-appointed judges have shown a remarkable proclivity for inventing previously unheard-of constitutional limits in order to block Democratic initiatives — limits so novel that Congress can’t avoid them, because the courts don’t announce them until after the law is passed. The conservatives’ invalidation of the Voting Rights Act of 1965, which unleashed an epidemic of vote suppression, is a prominent example. 

But it has happened again and again with ObamaCare. Three times, Republican lawyers have embraced challenges to the Affordable Care Act based on theories that until then would have been laughed out of court. Suddenly they were taken seriously by the Republican press and most of the court’s conservatives. The lesson is that legal doctrine, even the legal doctrine that Republican judges have previously propounded, is no restraint on their proclivity to destroy legislation sponsored by Democrats. Anything the Democrats do might somehow be found unconstitutional.  

In the first ObamaCare case, NFIB v. Sebelius, it was claimed that universal health insurance is unconstitutional: Government can’t force people to buy an unwanted product. That limitation does not appear in the Constitution, or in any case decided before ObamaCare was enacted. In my book, “The Tough Luck Constitution and the Assault on Health Care Reform,” I found that the objection’s first, underdeveloped statement appeared on Dec. 9, 2009, a month after the bill passed the House. It was thought frivolous by most experts, because since 1819 the court had repeatedly reaffirmed that Congress has broad power to address national problems. In its decision, the court never did clearly explain why those earlier decisions did not support this legislation. Five justices agreed that the law was somehow beyond Congress’s power to regulate commerce. Chief Justice Roberts was one of them, but he upheld the law under the taxing power. That was clearly correct. Even though the payment for going uninsured was not described as a tax in the law, the court had said in 1948 that the “question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.” Roberts quoted that language to show that he wasn’t doing anything novel, just applying established law.

Here is our first window into Barrett: She accuses Roberts here of “creatively interpreting ostensibly clear statutory text.”  She declares that his approach “is at odds with the statutory textualism to which most originalists subscribe.” She cites with approval Justice Scalia’s accusation that the court was willing “to ‘rewrite’ the statute in order to keep it afloat.” She concludes that “it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.” (She evidently agrees with the conservative justices that Congress has no power to directly impose universal health insurance, but she doesn’t say why.)

The second challenge was King v. Burwell. The law’s opponents tried to exploit a minor drafting error in an effort to deprive millions of people of insurance. That, of course, would have defeated the purpose of the law. Courts ordinarily know how to make sense of drafting glitches. So does everyone: You und3rstand thsi sentense. In 1945, Arkansas passed an act that included this section: “All laws and parts of laws, and particularly Act 311 of the Acts of 1941 are hereby repealed.” The language unambiguously, albeit insanely, repeals every law in Arkansas. In his coauthored book, “Reading Law”, Scalia observed that a literal reading of this language “threatened to wipe out all the statutory law in the state.” He used this episode to illustrate the ancient canon of statutory interpretation, that laws should not be read to produce absurd results. Yet in King, he, along with Justices Thomas and Alito, were ready to wipe out the coverage that the law obviously was meant to extend.

Here, too, Barrett agrees with Scalia’s dissent. She writes that “insofar as the Court strained the language to avoid a holding that would have gutted the statute, the opinion reflects the same impulse animating NFIB v. Sebelius.” Lawyers normally would never concede that their interpretation “would have gutted the statute.” Barrett, however, blithely notes that “modern textualists have backed away from the absurdity doctrine.”  So, should all of Arkansas law have been nullified?  

The third challenge, now pending before the court, is California v. Texas, in which it is claimed that ObamaCare became unconstitutional when the Republican Congress eliminated the payment for being uninsured, but didn’t delete the requirement to carry insurance. The argument here is hard to report with a straight face: The insurance requirement can’t be a tax because it raises no revenue for the government, therefore Congress can’t impose it. Fine so far: The IRS is forbidden to collect a payment in the amount of zero dollars! But then it is argued that the entire statute somehow depends on this zero-dollar provision, evidently because Congress once thought that a significant payment was a necessary incentive for people to buy insurance. The challengers claim, and the Trump administration agrees, that a district court must now hold a lengthy trial to determine which parts of the law to trash, while the attendant uncertainty deranges the insurance markets. This is an even sillier claim than the other two, and some ObamaCare opponents have declared that it is ridiculous. But, with Ginsburg gone, it might succeed. 

Commentary has focused on the immediate danger to ObamaCare. In the age of COVID, that’s obviously an urgent concern. But notice what it reveals more generally about the court — and Barrett. Evidently no claim against a key piece of Democratic legislation is too dumb for the conservatives to take it seriously. 

If this challenge fails, perhaps a fourth suit will be filed, claiming that ObamaCare is unconstitutional because it is icky and has cooties. A Republican-appointed district judge will refuse to dismiss it as frivolous, conservative commentators will devise ingenious rationalizations for it, a court of appeals panel of Trump-appointed judges will solemnly affirm it and ObamaCare will once more be before the Supreme Court. 

The essay by Barrett that I have been quoting is a smart review of Randy Barnett’s book, “Our Republican Constitution.” Barnett, the mastermind of the first ObamaCare challenge, embraces a libertarianism that borders on anarchism. His book proposes that all legislation be presumed unconstitutional unless its necessity can be proven in court.  Judge Barrett wisely observes that Barnett’s approach to judicial review would strain courts beyond their institutional capacities and thwart the normal democratic process.  But, when she comes to ObamaCare, she dances to his tune. 

Her views of those earlier cases don’t logically entail that she would embrace the far wackier challenge of California v. Texas. But they do show that she sympathizes with condemnations of ObamaCare that make no sense. That could happen again.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict” (Oxford University Press, 2020).