The confirmation of Justice Amy Coney Barrett to the United States Supreme Court, and the process that lead up to it set off a firestorm of controversies; Democrats accusing Republicans of rushing through a candidate right before an election, and Republicans accusing Democrats of politicizing the process of the confirmation for political gain. Beyond the wrangling, however, an earnest discussion is to be had on fate of the Affordable Care Act (“ACA”) and whether Justice Barrett and of the Court upon which she sits will strike down this landmark legislation. As discussed below, Justice Barrett’s seat on the Court may not make much of a difference. Rather, the Court and further legislation are likely to produce additional uncertainty for the ACA and healthcare coverage generally in the near and even intermediate term.
The ACA has, without a doubt, been one of the most highly debated and contentious laws since it was enacted through a parliamentary procedural mechanism and simple majority vote in 2010. It was designed to extend healthcare coverage to uninsured Americans, partly through premium subsidies and expansion of Medicaid coverage. In 2012, the law faced its most consequential challenge, but at that time the Supreme Court held that the “individual mandate” penalty imposed by law for not obtaining coverage — a key element to funding the law — was a lawful tax within Congress’s powers rather than an overextension of Congress’ Commerce Clause authorities. At that time, then Law Professor Barrett, expressed opposition to this ruling, arguing that Chief Justice Roberts’ opinion was incorrect and that the penalty provision of the ACA is unconstitutional. Notwithstanding this fact, however, Justice Barrett stated in her confirmation hearings that she was not hostile to the ACA, just the Constitutional interpretation that upheld its passage. In the confirmation hearings, Democrat Senators shared stories of Americans who gained coverage under the ACA and stood to lose coverage if the Court struck it down. The COVID-19 Pandemic was also leveraged to add further drama to these stories, but these demonstrations were more political theatre than legal arguments or interpretations.
Of greater legal relevance is the fact that the ACA faces a new challenge out of the United States Fifth Circuit Federal Court of Appeals, which arose after Congress eventually eliminated the individual mandate portion of the ACA. In that case, the Fifth Circuit held, among other things, that the individual mandate was in fact an unconstitutional overreach of Congress’ Commerce Clause powers. This challenge has once again elevated examination of these issues to the Supreme Court. The issue, of course, is whether Justice Barrett’s confirmation to the Court will make a difference. She could — based on her past positions and arguments — agree with the conservative majority and strike down the ACA (although the current argument before the Court differs slightly than in the 2012 challenge). Justice Barrett (or other court members) might, however, choose to defer to earlier precedent upholding the ACA or examine this issue in a distinctly new way.