What is the Concern with Judge Amy Barrett becoming Supreme Court Justice and the Affordable Care Act?

You will recall a prior Supreme Court challenge where the individual mandate was held to be a tax and as such a Constitutional law. Surprisingly, Chief Justice Roberts who was considered a more conservative thinker sided with the more liberal justices in the assessment as a tax.

With the death of Justice Ginsburg, the 5-4 generally more conservative leaning becomes 5-3 and if Judge Barrett is added, presumably will be more of a 6-3 conservative leaning. A case before the United States Supreme Court, California v Texas aka Texas v. U.S. in lower courts will address the Affordable Care Act (ACA). The ACA centers around the individual mandate and without it, could mean the end of the law. The oral arguments for California v Texas is set for November 10th.

The 2017 Tax Cuts and Jobs Act cut the requirement of the individual mandate to zero responsibility, so now when there is no tax and the Federal government cannot make any money off of the mandate, it makes the mandate unconstitutional as decided by the 5th Circuit Court of Appeals. The 5th Circuit further decided that the individual mandate cannot be severed from the rest of ACA and the ACA is therefore unconstitutional on the whole. The intent of the 5th Circuit was however to send that back to the trial court but instead it now awaits determination before the United States Supreme Court.

The original Texas plaintiffs consisted of twenty state attorneys general from “red” states. Two states dropped out but are still supported by eighteen states. A House of Representatives majority has also joined the California defendants. Realizing that the question pertains to individuals and not just states to have standing before the Court, two Texas plaintiffs were located who by Affidavit stated they believed they had to purchase health insurance or pay a penalty and be harmed financially. The states assert standing in that they are required to spend money in determining who is required to have Obamacare. Dissenters believe the standing of these two residents of Texas are weak. The defendant states now number twenty-one and are typical “blue” states.

The odd thing is that the United States now takes the position that the individual mandate is unconstitutional but also wishes to keep all other aspects of the law in place.

So this leaves the United States Supreme Court with a few things to consider. Number one is whether the states and/ or the two individuals have standing. Number two is whether the Tax Cuts Act of 2017 did indeed make the individual mandate unconstitutional and number three if so entwined is the ACA unconstitutional on the whole and finally number four is what to do with the ACA if found to be unconstitutional?

If Judge Barrett is confirmed we will see what part she plays in California v Texas and even the possibility of an election challenge.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.” No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers.”