Barrett in the spotlight as Supreme Court takes on ObamaCare challenge

Supreme Court Justice Amy Coney Barrett, exactly two weeks after starting her new post, will hear the Affordable Care Act (ACA) case on Tuesday that Democrats have hammered at her throughout her confirmation hearings and has the potential to overturn the law that is the signature of former President Obama. legislative achievement.

The newly created judge and the rest of the court will participate in remote argument via teleconference that will be webcast live online at 10 a.m.

Barrett’s questioning in the case, officially called California vs. Texas, and where she rules in the court’s final decision, will be closely watched by supporters on both sides – by Republicans who hope she will cement a 6-3 majority nominated by the GOP which will interpret the laws according to how they see them and by Democrats who fear it is a partisan who repeals leftist laws and supports those favored by the conservatives.

“A vote by any senator for Judge Barrett is a vote to wrest health care from millions of Americans,” Senate Minority Leader Chuck Schumer, DN.Y., has repeatedly said. through Barrett’s confirmation process.

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“It would be catastrophic for the more than 20 million Americans who obtained health care coverage under the ACA and the 100 million and more Americans who would lose legal protections for people living with pre-existing conditions, ”Senator Mazie Hirono, D-Hawaii, said, warning that Barrett could be the reason the protections under the law also known as ObamaCare are lost. “When my fellow Democrats and I pressed her to find out how she would factor in the real impact of millions of people losing access to health care, she said these are ‘political consequences’ that Congress must approach. “

Meanwhile, Barrett and her GOP supporters said her record as a federal and academic judge made her intellectually fit for the task of being a Supreme Court judge and that her independence was displayed as a member of the 7th Circuit Court of Appeals.

“Justice Amy Coney Barrett is one of the most highly qualified individuals ever to be appointed Associate Justice of the Supreme Court. She will faithfully apply the law to facts without a personal agenda and fully understands the difference between an impartial judge and a political activist judge, ”said Lindsey Graham, RS.C., chair of the Senate Judiciary Committee.

Senate Majority Leader Mitch McConnell R-Ky: “She is committed to ‘enforcing the law as it is written, not as it wishes.’ Her testimony, her writings and her reputation confirm a total commitment to fairness … She received the highest rating from the American Bar Association, left. They marveled at the breadth, diversity and strength of the positive comments. [they] received from judges and lawyers of all political stripes. “

BARRETT, SUPPORTED BY DEMOCRATS ON THE FUTURE OF OBAMACARE IN AUDITION, MAKES A “ JENGA GAME ” COMPARISON

California v. Texas was originally brought by a group of Red States, led by Texas, against the Affordable Care Act (ACA) in an attempt to strike down the law because they claim it is unconstitutional now that there is no financial penalty associated with the individual mandate to purchase health insurance.

In one of the two pre-ACA constitutional challenges, Chief Justice John Roberts sided with the Democratic-appointed bloc of judges to uphold the ACA 5-4 on the grounds that the individual term could be read as a constitutional trigger for a tax rather than an unconstitutional fine punishing Americans for not purchasing a certain product. It shocked Republicans at the time, and many on the right are still unhappy with the decision.

But a Republican Congress and President Trump removed the financial penalty for not purchasing health insurance while leaving the mandate itself in place. This, say the Republican states, makes it impossible to read the provision as a tax any longer and should lead to the cancellation of the ACA.

The government, the Red States argue in a brief, cannot force people to purchase insurance “any more than it can order them to buy a new car or broccoli.”

Although law enforcement has disappeared from the individual mandate, the requirement in law that people purchase health insurance remains, they say, and should be the reason the ACA is falling.

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The California-led Blue States, which have stepped in to defend the ACA in court because the Trump administration has chosen to oppose it, say the individual mandate as it currently stands is constitutional.

But it is unlikely that the arguments of both sides on this point will be the focus of Tuesday’s hearing. The focus of discussion will likely be the doctrine of “severability” or whether the rest of the ACA can do without the individual mandate. Barrett, during his confirmation hearing, described severability as a “Jenga game.”

“So if you imagine separability to be like a Jenga game, it’s kind of if you take one out… will it all hold or if you take two out, will it still hold?” the then candidate said in response to a question from Judicial Committee Ranking Member Dianne Feinstein, D-Calif.

She was pressed to find out why this ACA case would be different from the one she was commenting on in an academic article while he was still a professor at Notre Dame. Barrett said he could be singled out because Congress had since changed the law and there was only one potentially unconstitutional provision at issue in that case, meaning only one “Jenga” bloc could potentially be removed from the law here, against two provisions that were at issue. before.

Barrett added: “I think the doctrine of divisibility as described by the court serves a valuable function in trying not to cancel your work when you wouldn’t want a court to cancel your work. Divisibility strives to view a law as a “Did Congress consider this provision so vital that in the Jenga game, by removing it, Congress would no longer want the statute?”

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Lawyers arguing on behalf of California and the Blue States – as well as the Democratic-controlled House of Representatives, which has also stepped in to defend the ACA – are likely to seize on this part of Barrett’s analysis, which the severability is meant to preserve laws Congress wouldn’t want to be struck down, in their argument Tuesday.

“The [Tax Cuts and Jobs Act] reduces to zero the amount of the replacement tax imposed by [the individual mandate]. This amendment “ unbinds the coverage requirement without repealing any other part of the ACA ”, “a brief for the blue states reads.” In other words, the current statutory scheme – which was passed by both houses of Congress and signed into law by the President – makes the minimum coverage provision effectively inapplicable while preserving the rest of the ACA. “

The blue states add: “The statutory text thus gives us ‘an unusual insight into the thinking of Congress …’ It manifests the intention of the ‘Congress’ that the ‘balance of ACA’ should survive in the absence. ‘an enforceable minimum cover provision.’

The Trump administration, which will be present at the debates on Tuesday, disputes this.

“The individual mandate cannot be separated from the rest of the ACA,” he said in a brief filed earlier this year. “The Congressional findings incorporated into the ACA text make it clear that Congress would not have passed the guaranteed issuance and community rating provisions without the requirement of the individual mandate to purchase insurance.”

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There will likely be a decision in California v. Texas by the summer of 2021, which marks the end of the Supreme Court’s current term. It is possible that a decision will be rendered much earlier, as the matter is debated at the beginning of the quarter. But decisions in successful cases like this are often made towards the end of a term, as judges spend a lot of time formulating opinions and refining arguments for majority and dissent.

But with the arrival of a new president and a Senate that could still be controlled by Democrats next year if they sweep the January second round in Georgia, any ruling in the case could be rendered moot in the where Congress reinstalls the financial sanction associated with the individual mandate or takes any other action to change the ACA.

More than the implication for the ACA as law, however, Tuesday’s hearing and California’s eventual outcome against Texas will likely be seen as an indicator of what the court’s new 6-3 majority might look like. Supreme Republican nominee and how independent Barrett will be from the president who appointed her.

Fox News’ Bill Mears and Shannon Bream contributed to this report.