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Brian Mark Weber / Oct. 16, 2020

Judge Barrett and ObamaCare

Democrats are fearmongering about the law being struck down, but the truth is...

When President Donald Trump nominated Amy Coney Barrett to the Supreme Court, we knew Democrats would frame the pick as an assault on everything they hold dear. But while some on the Left are worried about the fate of Roe v. Wade, the real focus during the confirmation hearings has been Barrett’s alleged threat to ObamaCare. And how we got to this point is worth noting.

As Michael Brendan Dougherty notes at National Review, Chief Justice John Roberts in 2012 “wrote the opinion that vindicated the law, one that everyone else on the Court (and many outside) seemed to disdain. He rewrote the penalty as a tax.” Dougherty adds that Roberts thus “dramatically incentivized Democrats to writhe around like an Italian soccer player when given slightest brushback and threaten the judiciary like FDR.”

Then came the Fifth Circuit Court’s ruling in 2019, which not only effectively ruled the individual mandate unconstitutional, but essentially called the law itself into question as a result. Nonetheless, ObamaCare survives even with the mandate reduced to zero.

Now, Supreme Court oral arguments in California v. Texas are set for November, just after Election Day. That makes the Barrett confirmation even more interesting. If Barrett isn’t confirmed, a 4-4 ruling would confirm the Fifth Circuit’s decision against the law.

No wonder Democrats on the Judiciary Committee are trying to make Americans think a Justice Barrett would single-handedly wipe out every progressive program since FDR. In reality, the progressive agenda is probably safe.

Barrett was critical of the individual mandate in 2012, just as any thoughtful justice would be. And that’s why Democrats keep pushing her to recuse herself from any ruling on ObamaCare.

But the case coming up this November deals with different issues than Barrett questioned back in 2012. This time around, the Court will determine whether the individual mandate with a penalty/tax of zero dollars can still fall under Congress’s power to tax, and whether the mandate can be struck down without dismantling ObamaCare altogether.

This week, Barrett didn’t commit to scrapping ObamaCare. Instead, she indicated her preference to maintain established law through the concept of severability — i.e., if a particular provision of a law is struck down, the court should make every effort to retain the rest of the law if possible. This certainly gives pause to some conservatives who’d hoped that making the tax provision of ObamaCare moot would dismantle the law completely.

Meanwhile, the Democrats’ fervent embrace of ObamaCare might make sense if the law actually worked for the American people. Nearly 10 years later, it’s plain to see it’s much worse than we feared. For one, Americans didn’t get to keep their doctors, the lie Barack Obama repeatedly promised. And a Gallup poll last year revealed that 33% of Americans say they or another member of their family had put off medical treatment due to the high costs of ObamaCare.

As Monica Showalter explains, “It’s a system whose costs never go down and instead every year go up, it’s ultimately unsustainable as millions of people have no choice but to drop out.”

And where does President Trump come down on the issue? We know that he’s been an outspoken critic of ObamaCare, but now he’s promising to retain coverage for pre-existing conditions even if his predecessor’s signature “achievement” is overturned. In a strange way, he’s given the law more credence than it deserves, and he’s at odds with Republicans who want the law repealed root and branch.

ObamaCare is hanging on by a thread, but that doesn’t mean a Justice Barrett will pull the plug on it completely. If we learned anything this week, it’s that Barrett has a mind of her own. And if Republicans actually put forth a solid alternative to ObamaCare, all this huffing and puffing would be even sillier than it is already.

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