By George Hofmann
Opponents of the confirmation of Supreme Court nominee Amy Coney Barrett, a federal appellate judge, are scouring her record to anticipate just how she may rule on cases due to come before the Court. One focus of her opponents is the legal wrangling over the Affordable Care Act, or Obamacare.
What this group fails to realize is that if a piece of legislation like the ACA is so threatened by judicial review, maybe it was a poorly crafted law in the first place — and maybe their elected representatives can do something about it.
The key points of contention over the ACA are coverage for pre-existing conditions and the individual mandate. Pre-existing conditions, of course, are health conditions that a person suffers from before they purchase a health insurance policy. At this point, a majority of politicians from both sides want them covered. The difficulty, for both insurance companies and the policy holders seeking low-cost coverage, is adverse selection.
In adverse selection a person buys insurance only after a loss has occurred. The fear is that people will go without health insurance and only buy it after they become sick and must seek help paying medical bills. It’s obvious that this disrupts the way insurance works, where a large group of people with no claims subsidizes a small group who become ill.
To remedy this the writers of the ACA imposed an individual mandate: everyone must buy health insurance, or be penalized. This eliminated adverse selection and added, by government coercion, to the pool of premiums from which claims are paid. What keeps coming before the courts is whether or not the federal government has the right to force citizens to buy something they may not want, and, if so, how to punish them if they disobey.
Under the ACA the government can charge a penalty to individuals who choose not to participate in a health insurance plan. This is the precise issue that Judge Barret has weighed upon as an appellate judge — not coverage for pre-existing conditions.
The real pre-existing condition we need to be concerned about is Congress’ inability to legislate.
Judge Barrett’s writings on the ACA are limited to the debate over whether the fee charged to people who refuse coverage under the individual mandate is a penalty or a tax. She has never expressed an opinion on the constitutionality of the ACA or any of its constituent sections.
Her objection is clear. Under the Commerce Clause in Article I, Section 8 of the United States Constitution, Congress has the authority to impose taxes. Whether or not they can enforce penalties has never been decided, according to many legal scholars.
This nit-picking, perhaps semantic issue is illustrative of a deep illness from which the country suffers. A disease of politics, it’s the condition that causes Congress to repeatedly punt its responsibility to craft and pass workable legislation to the Court.
This is precisely what the Democrats did with the ACA. They slammed through a poorly constructed bill, with a reference by then-Speaker Pelosi to “pass this so you can find out what’s in it,” and have left it to the judiciary to clean up their shoddy work. This is a simple dereliction of duty.
The Republicans have acted no better. With a decisive majority holding Congress and the White House, they were unable to repeal or replace the ACA. Now they too seek redress from the courts to act upon and complete policies they chose to advance and yet couldn’t through the procedure laid out in the Constitution.
This nit-picking, perhaps semantic issue is illustrative of a deep illness from which the country suffers… it’s the condition that causes Congress to repeatedly punt its responsibility to craft and pass workable legislation to the Court.
Of course, nobody from either political establishment in the past decade seems to have considered what a functioning, bipartisan health reform might look like. Another American sickness.
An originalist justice will interpret the Constitution as written, and not add new layers of context to a decision the way an activist justice will. With regards to the ACA, it seems that every political tribe secretly seeks an activist court to advance their opinions on healthcare law. A true originalist would look to Congress, not to the courts, to make the tough legislative decisions. Right now, if confirmed, in Judge Barrett we will get an originalist justice who will block Congress from deferring its responsibility to the Court.
Today, while waiting for majorities to pass bogus legislation, then stacking the courts and hoping for the best, both parties have reached a point where compromise and nuance in debate and law-making is impossible. If our Representatives and Senators were held to the responsibility they were given in the Constitution, issues that seem so extreme from each side — issues like healthcare — would meet a spectrum of arguments instead of the current all-or-nothing, opposition-be-damned climate that infects the legislature and, subsequently, the entire nation.
Judges like Amy Coney Barrett are the cure for this dysfunction. Instead of legislating from the bench — and instead of acting as a staunch conservative politician, as many on the left will claim — Barrett will force Congress to do their job: to go back to the Capitol and work it out the way our constitutional system has mandated. Laws will be better because compromise will be necessary. Legislators will have the opportunity and responsibility to establish and stand on their own records — not on their ability to posture in public and hide in the shadows while the judiciary does the heavy lifting.
George Hofmann is the author of Resilience: Handling Anxiety in a Time of Crisis. He lives in Philadelphia with his wife, their daughter and two poorly behaved dogs.