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Barrett signals ObamaCare could survive mandate being struck down

Barrett signals ObamaCare could survive mandate being struck down
© Bonnie Cash

Supreme Court nominee Amy Coney Barrett on Wednesday signaled that the Affordable Care Act (ACA) could survive a court challenge from the Trump administration.

Top senators on the Senate Judiciary Committee quizzed President TrumpDonald John TrumpJudge rules to not release Russia probe documents over Trump tweets Trump and advisers considering firing FBI director after election: WaPo Obama to campaign for Biden in Florida MORE's nominee on a looming case that could determine the fate of the ACA.

Senate Judiciary Committee Chairman Lindsey GrahamLindsey Olin GrahamHillicon Valley: Threatening emails raise election concerns | Quibi folds after raising nearly B | Trump signs law making it a crime to hack voting systems Trump signs legislation making hacking voting systems a federal crime Jaime Harrison on Lindsey Graham postponing debate: 'He's on the verge of getting that one-way ticket back home' MORE (R-S.C.) and Sen. Dianne FeinsteinDianne Emiel FeinsteinDemocrats to boycott committee vote on Amy Coney Barrett's Supreme Court nomination The Senate should evoke RBG in its confirmation of Amy Coney Barrett The Hill's Morning Report - Sponsored by Goldman Sachs - Pelosi, Mnuchin push stimulus talks forward, McConnell applies brakes MORE (Calif.), the top Democrat on the panel, kicked off the third day of Barrett's hearing pressing her on the health care case, and if the individual mandate, nixed by Congress in 2017, can be stuck down without tanking the entire law.

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Barrett did not say how she would rule in the case that will be before the Supreme Court on Nov. 10 but noted that judges generally try to save the underlying law when possible. 

"The presumption is always in favor of severability," Barrett said in response to a question from Graham. 

Graham appeared to signal he thought ObamaCare could be saved, even if the individual mandate is struck down, as he pressed Barrett on whether the "main thing" was that there was a "presumption" to save an underlying law. Barrett replied: "That's correct." 

"I want every conservative in the nation to listen to what she just said. The doctrine of severability presumes and its goal is to preserve the statue if that is possible," Graham added. 

When Barrett agreed that it was "true" that judges try to preserve the overall law when weighing if a provision can be removed, one of the key points of debate in the looming ObamaCare case, Graham added: "That's the law folks." 

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Barrett's remarks appear to contrast the basic argument from the challengers, a group of more than a dozen Republican states, who say that because Republicans zeroed out the individual mandate, which required most Americans purchase health care, the entire Obama-era health care law is unconstitutional and should be struck down. The Justice Department has backed that lawsuit. 

The GOP challengers note that the law's original design depended on a requirement that most people purchase insurance, and set up a tax penalty for noncompliance. But the Trump tax cuts zeroed-out the penalty on the federal level, which, according to the litigants, should cause the whole ObamaCare structure to collapse because the individual mandate is not severable, in their view, from the rest of the law. 

Barrett, under questioning from Feinstein, compared "severability" to a "Jenga game," meaning if the court stuck down one piece could the rest of the law survive or is the provision so key that it would collapse. 

"I think the doctrine of severability as it's been described by the court serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work," Barrett said. 

Senate Republicans in 2017 nixed the ObamaCare individual mandate, which required most Americans to have health insurance. Several GOP senators said at the time that their decision to nix the mandate was not meant to pull down the entire Obama-era health care law, something they have tried for years, without success, to do.  

Barrett added that one of the questions on severability was whether "Congress would still want the statue even with this provision gone." 

"Thank you," Feinstein responded. "That's quite a definition. I'm really impressed." 

Democrats have warned that they believe a vote for Barrett would be a vote to strike down the entire Affordable Care Act, even though legal experts have suggested that is unlikely to happen in the case before the court on Nov. 10. 

Democrats have pointed to a law review article by Barrett in 2017 — in which she criticized Chief Justice John Roberts’s reasoning in voting to uphold the law — as evidence of her hostility to the health care law, though she has never said directly how she would rule on the issue that will be heard by the court. 

The back-and-forth on Wednesday comes after Barrett disclosed on Tuesday that she had ruled, as part of a moot court on the health care case, that the individual mandate was unconstitutional but could be severed from the rest of the law. 

She warned on Tuesday that senators should not try to use the moot court to read into how she might decide the November case. 

Progressive groups appeared unconvinced by Barrett's statements, or senators' attempts to appear to try to steer her toward saying the individual mandate was severable from the rest of ObamaCare.  

"The Truth: They're attempting to make us believe parts of the ACA will be left intact when it comes before SCOTUS. But Trump nominated Barrett to gut the ENTIRE law," tweeted the National Women's Law Center