Barrett says she did not strike down ObamaCare in moot court case

Barrett says she did not strike down ObamaCare in moot court case
© Greg Nash

Supreme Court nominee Amy Coney BarrettAmy Coney BarrettOn The Money: Yellen champions big spending at confirmation hearing | Republicans express concerns, but little opposition | Debt cloud hangs over Trump post-presidency Barrett hears climate case against her father's ex-employer Shell Senate Democrats leery of nixing filibuster MORE said she did not strike down the Affordable Care Act (ACA) but did find its individual mandate unconstitutional in a recent moot court case, while stressing her actions in the moot court case did not actually reflect how she might rule on ObamaCare if confirmed to the high court.

Barrett, currently a judge on the U.S. Court of Appeals for the Seventh Circuit, has faced withering criticism from Democrats who say she will vote to overturn the signature Obama-era health care law in an upcoming case regarding the ACA that the high court will hear on Nov. 10, one week after the election.

“The vote was, in the panel, the majority said that the mandate was now a penalty and was unconstitutional but severable,” Coney testified in front of the Senate Judiciary Committee, referencing a moot court case she participated in at William & Mary Law School. “I voted to say that it was unconstitutional but severable.”


Democrats have sought to pin Barrett on her stance on ObamaCare, noting that a ruling next month overturning the law could cost over 20 million people their coverage.

The case, California v. Texas, revolves around whether the ACA’s individual mandate was a tax or a penalty and whether it can be cut out while leaving other parts of the law intact now that Congress has zeroed out the fee associated with it. While the Supreme Court has in the past upheld the law, Barrett said Tuesday that precedent does not apply to the upcoming case.

“There’s no precedent on issue that’s coming up before the court. It turns on a document called severability, which was not an issue in either of the two big Affordable Care Act cases,” she told Judiciary Committee Chairman Lindsey GrahamLindsey Olin GrahamSenate presses Biden's pick for secretary of State on Iran, China, Russia and Yemen GOP senator questions constitutionality of an impeachment trial after Trump leaves office Graham pushes Schumer for vote to dismiss impeachment article MORE (R-S.C.).

Barrett has raised eyebrows over criticism of the Supreme Court’s 2012 decision to uphold the Obama-era law, saying at the time that Chief Justice John Roberts, who wrote the ruling, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” However, she said Tuesday she is not “hostile to the law.”

“I think that your concern is that because I critiqued the statutory reasoning that I'm hostile to the ACA, and because I'm hostile to the ACA that I would decide a case in a particular way,” Barrett told Sen. Dick DurbinDick DurbinMcConnell keeps GOP guessing on Trump impeachment Officials brace for second Trump impeachment trial Sunday shows - Capital locked down ahead of Biden's inauguration MORE (D-Ill.). “And I assure you I am not — I am not hostile to the ACA, I'm not hostile to any statute that you pass.”


Republicans have cast Democrats as hysterical, claiming that worries that the ACA is heading for the chopping block are overblown.

“I think that’s kind of an answer, frankly, to a lot of those who are raising the specter that you’re going to try to take the whole Affordable Care Act away from everyone because of this very narrow case that is in front of the Supreme Court,” Idaho Sen. Mike CrapoMichael (Mike) Dean CrapoSweeping COVID-19, spending deal hits speed bumps McConnell in tough position as House eyes earmark return Mnuchin to put 5B in COVID-19 relief funds beyond successor's reach MORE (R) said of Barrett’s ruling in the moot court case. 

Barrett clarified the case “wasn’t designed to reflect my actual views. So to the extent that people think I might have been signaling to the president or anyone else what my views on the Affordable Care Act are, they couldn’t have taken any signal from that. But I wasn’t trying got signal anything because it was a mock exercise.”