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What Health Care Questions Should Senators Ask Judge Amy Coney Barrett?

Judge Barrett meets with Senators
  • Timothy S. Jost

    Emeritus Professor, Washington and Lee University School of Law

  • Timothy S. Jost

    Emeritus Professor, Washington and Lee University School of Law

  • Hearings begin today to debate the confirmation of Judge Amy Coney Barrett to the Supreme Court. If confirmed, she could hear cases on the fate of the ACA, as well as Medicaid work requirements and abortion

  • Health care law expert Timothy Jost suggests senators should focus their questions on the concept of “severability” — how much of the ACA should be invalidated if the individual mandate is found unconstitutional

On November 10, the Supreme Court will hear oral arguments in California v. Texas, the case in which the attorney general of Texas and attorneys general of other Republican-led states, joined by two individuals, have asked the Court to invalidate the entire Affordable Care Act (ACA). On October 12, the Senate Judiciary Committee began hearings to debate the confirmation of Judge Amy Coney Barrett to the Court. President Donald Trump and Senate Majority Leader Mitch McConnell want Judge Barrett confirmed by Election Day, in time to participate in the argument and decision.

The challenge to the ACA is not the only health care case that Judge Barrett may hear if she is confirmed. Several cases are percolating up through the federal courts that may end up in the Supreme Court. These cases involve: the legality of Trump administration regulations expanding the availability of short-term limited duration health insurance plans and association health plans (which undermine ACA individual market reforms); whether Medicaid beneficiaries can sue to receive services other than abortion from Planned Parenthood; Medicaid work requirements; discrimination protections under ACA section 1557 for transgender individuals; public charge regulations that discourage Medicaid access for immigrants; and, of course, abortion. Challenges to any reforms adopted by a future administration (a Biden administration, for example) might also come before the Court.

The ACA, however, has become a major focus of the debate around the confirmation of Judge Barrett, just as it has become a point of contention in the upcoming election. The ACA case turns on three issues: First, do Texas and the individual plaintiffs have standing to challenge the ACA, which depends on whether they have been injured by the ACA’s unenforceable individual mandate? Second, is the mandate, which was found unconstitutional as a government requirement but upheld as a tax by the Supreme Court in 2012, now unconstitutional because the tax was reduced to $0 by legislation passed in 2017? Third, and most important, if the mandate is held unconstitutional, how much, if any, of the remainder of the ACA should be invalidated by the Court? This question turns on the doctrine of “severability,” under which courts determine how much of a statute must be invalidated when a single provision is found to be unconstitutional.

How Will Judge Barrett Approach Issues Coming Before the Court?

During her three years on the Seventh Circuit, Judge Barrett has given little indication as to how she will rule on California v. Texas or other health care cases. One exception is a case in which she dissented from the majority opinion striking down President Trump’s public charge rule. She would have deferred to the Trump administration’s rule, complaining that “litigation is not the vehicle for resolving policy disputes.”

She has written extensively in academic articles and discussed in public speeches doctrines that may be applied in California v. Texas or other cases. In particular, she identifies herself as a textualist in the tradition of her mentor, former Justice Antonin Scalia. This means that she focuses on the ordinary meaning of the text of a statute rather than on Congress’s purpose in adopting the statute. She has also criticized the majority’s decision in NFIB v. Sebelius, which upheld the ACA mandate as a tax, and King v. Burwell, which upheld access to ACA premium tax credits for individuals enrolled in insurance plans through the federal exchange.

What Questions Should Senators Ask Judge Barrett?

Judge Barrett likely will not answer questions in her confirmation hearings specifically about the ACA or other health care cases that may come before the Court; typically Supreme Court nominees do not answer questions about cases they may have to decide. But the senators could ask her questions that touch generally on related issues and doctrines.

Though she could be asked about standing or the mandate’s constitutionality, questions for Judge Barrett should mainly focus on severability: How much, if any, of the ACA should be invalidated if the mandate is found unconstitutional? (It does not matter much if the unenforceable mandate is invalidated if the rest of the ACA remains in place.) Would she disturb the Court’s long-standing presumption of severability? Cases recently decided by the Court with majority opinions written by Chief Justice Roberts and Justice Kavanaugh reinforce the presumption that if a provision of a statute is found unconstitutional, as much of the rest of the statute as possible should be found severable and preserved. She should be asked if she agrees with this doctrine.

The plaintiffs’ primary argument for invalidating the entire ACA depends on reading the “findings” that accompanied the individual mandate. Congress included in the ACA “findings” that the mandate was “essential” to the ACA’s insurance reforms to establish Congress’s authority to adopt the mandate under its constitutional interstate commerce jurisdiction. The plaintiffs argue, however, that these “findings” should be read as a “nonseverability” clause, which would require invalidating the rest of the ACA, or at least its protections for patients with preexisting conditions, if the mandate is found unconstitutional. Senators could ask Judge Barrett if she thinks statutory findings have a legal effect or whether they should instead be treated only as a guide to legislative purpose.

She also could be asked whether the invalidation of an entire statute — or a large part of it — should be based on a clause (like the findings clause) that does not expressly say that the rest of a statue should be held invalid. When Congress writes nonseverability clauses in statutes, it in fact uses language that is unmistakably explicit. She might also be asked how her observation that “litigation is not the vehicle for resolving policy disputes” applies to attempts to invalidate an entire complex statute.

Even setting aside California v. Texas, the expedited appointment of Judge Barrett as the ninth justice to the Supreme Court will consolidate power among a right-wing majority on the Court. Her appointment would have significant implications for cases that involve access to care, women’s health, and future reforms for decades to come.

Publication Details



Timothy S. Jost, "What Health Care Questions Should Senators Ask Judge Amy Coney Barrett?" To the Point (blog), Commonwealth Fund, Oct. 12, 2020.