Senate Minority Leader Chuck Schumer, D-N.Y., said the survival of the Affordable Care Act (ACA), also known as Obamacare, is on the line in remarks Saturday night reacting to President Trump nominating 7th Circuit Court of Appeals Judge Amy Coney Barrett to the Supreme Court.
Barrett is a favorite in conservative circles and was previously considered for the seat vacated by retired Justice Anthony Kennedy in 2018, but Justice Brett Kavanaugh eventually got the nod. Barrett is now set to replace late Justice Ruth Bader Ginsburg, who was a trailblazer for women’s rights and the face of the liberal bloc on the Supreme Court.
“By nominating Judge Barrett to the Supreme Court, President Trump has put Americans’ health care at grave risk,” Schumer said at an after-dark press conference in New York City. “And as COVID-19 continues and we need more health care, the nomination by President Trump of Amy Coney Barrett will mean less health care for over 100 million Americans.”
Republicans have said that they plan to hold a confirmation vote for Barrett before the Nov. 3 presidential election. That would mean she would be seated before the Oct. 10 argument date of California v. Texas, a case brought by a coalition of red states aiming to invalidate the ACA on the grounds that its individual mandate — which was upheld by the Supreme Court previously as a tax — is now unconstitutional because Congress eliminated the financial penalty associated with not purchasing health insurance.
They say this makes it impossible to read the ACA as a tax anymore, so it is now simply an unconstitutional government mandate to purchase a certain product. The Trump administration is backing the red states’ position in the lawsuit.
Barrett, before being confirmed to her current appeals court post, had been seen as critical of the Supreme Court decision upholding the ACA, NFIB v. Sebelius. She wrote in a 2017 article that “[t]o the extent that NFIB v. Sebelius expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text, its approach is at odds with the statutory textualism to which most originalists subscribe.”
Barrett, an ideological disciple of Justice Antonin Scalia, for whom she was a law clerk, is considered to be one of the foremost originalists in the U.S.
“Thus Justice Scalia, criticizing the majority’s construction of the Affordable Care Act in both NFIB v. Sebelius and King v. Burwell, protested that the statute known as Obamacare should be renamed ‘SCOTUScare’ in honor of the Court’s willingness to ‘rewrite’ the statute in order to keep it afloat,” she wrote.
Schumer said the Barrett nomination — and the potential she could be a deciding vote in the California v. Texas case — could animate Americans against Trump and Senate Republicans who support her confirmation.
“Health care is the most important issue on the ballot to Americans and as Americans learn Judge Barrett’s views on health care and so many other issues, she will become less and less popular, and hopefully they will call their senators and say ‘don’t vote for someone who will take away my health care,'” Schumer said.
President Trump and congressional Republicans have said they would preserve some of the ACA’s popular protections, including the ban on insurance companies denying coverage to people based on pre-existing conditions, should the Supreme Court strike down the statute. But they have not put forward a clear plan or law to do so.
Trump said this week he was signing an executive order on protecting those with pre-existing conditions, but there is a question as to whether the order would have the force of law. House Speaker Nancy Pelosi, D-Calif., said this week it “isn’t worth the paper it’s signed on.”
Schumer also warned Saturday that Barrett could tip the scales of the Supreme Court’s jurisprudence on issues from environmental protection to LGBT rights to immigration to labor.
“Judge Barrett and those in the Federalist Society want to make America a right to work state,” Schumer said. “She said she believes in Judge Scalia’s philosophy, Judge Scalia would eliminate all those things, or greatly limit them.”
Republicans have pushed back on the criticism of Barrett and her judicial philosophy, particularly Sen. Ben Sasse, R-Neb., who said Barrett would be faithful to the Constitution above all else, which should only upset “rabid partisans.”
“Despite her unsurpassed character, reputation, and intellect, this confirmation process will be nasty. Why? Because too many on the left (and sadly some on the right as well) want judges who will substitute their own will for the law,” Sasse said in a Saturday statement. “Judge Barrett is not that kind of judge. She believes her duty isn’t to arbitrarily slop applesauce on stone tablets and declare new laws — her duty is to cloak her personal views under a black robe and to faithfully uphold the Constitution. That makes her a problem to rabid partisans, and an ally to the rule of law.”
Senate Majority Leader Mitch McConnell, R-Ky., on Saturday night lauded Barrett’s credentials — she is 48 years old and has put together a high-profile career as a professor at Notre Dame Law School and now as a federal appeals judge.
“President Trump could not have made a better decision. Judge Amy Coney Barrett is an exceptionally impressive jurist and an exceedingly well-qualified nominee to the Supreme Court of the United States,” McConnell said. “First, Judge Barrett built a reputation as a brilliant scholar at the forefront of the legal academy. Then she answered the call to public service. For three years on the Court of Appeals for the Seventh Circuit, she has demonstrated exactly the independence, impartiality, and fidelity to our laws and Constitution that Americans need and deserve on their highest Court.”
Republicans appear to have enough votes to confirm Barrett before the presidential election, but Democrats have sworn that they will fight her nomination, and Schumer’s Saturday night comments are likely just the opening salvo.
Barrett will for the next two weeks undergo intense media and congressional scrutiny. Then, the Senate Judiciary Committee reportedly plans to hold hearings on her nomination starting on Oct. 12. After that, she will have to make it past a committee vote. And finally a floor vote on her confirmation. And that’s if everything goes as Republicans plan — they didn’t during the most recent Supreme Court confirmation process for Justice Brett Kavanaugh in 2018.
“This legislative process and the confirmation process, it’s adverbial. It’s something that unfolds. And that means it changes as people act and react to one another,” R Street Institute senior fellow for governance James Wallner told Fox News this week. “I think it all depends on if the Democrats are willing to use the different procedural tools they have at their disposal as leverage to try to somehow change the narrative.”