Coronavirus Pandemic: Joe Biden and the Democrats Would Have Bungled Response

Democratic presidential nominee Joe Biden at a campaign event in Warren, Mich., September 9, 2020. (Leah Millis/Reuters)

Democratic presidential nominee Joe Biden on Monday falsely claimed that Supreme Court nominee Amy Coney Barrett “has said she wants to get rid of” the Affordable Care Act, saying Americans are “going to lose their health insurance” in less than one month.

As the first day of Barrett’s confirmation hearings before the Senate Judiciary Committee got underway, the former vice president, speaking to reporters before boarding a flight to Ohio, used a question about the Supreme Court nominee to once again repeat his claim that Barrett is after President Obama’s healthcare law.

“This nominee has said she wants to get rid of the Affordable Care Act — this president wants to get rid of the Affordable Care Act. Let’s keep our eye on the ball. This is about less than one month [in which] Americans are going to lose their health insurance,” Biden said.

The high court is set to hear arguments in a case challenging Obamacare on November 10.

Much of Democrats’ opposition to the 48-year-old Notre Dame professor and former clerk for the late Justice Antonin Scalia comes from concern that she would support eliminating the Affordable Care Act and overturning or restricting Roe v. Wade. Democrats have said the healthcare law would be on the line if Barrett is confirmed to the Court, creating a conservative majority. 

However, Biden’s comments were a misrepresentation of Barrett’s stance on the issue: though she has criticized Chief Justice John Roberts’ opinion that upheld the healthcare law on the basis that the individual mandate served as a tax, not a penalty, she has not expressed a desire to eliminate the healthcare law.

Her rebuke, which centers not on the law itself but on the legal issue at hand in the Supreme Court’s 2012 Obamacare case, NFIB v. Sebelius came in a 2017 book review, “Countering the Majoritarian Difficulty.”

“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote. “He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power.” 

She continued: “Had he treated the payment as the statute did — as a penalty — he would have had to invalidate the statute as lying beyond Congress’s commerce power.”

Justice Antonin Scalia, who served as a mentor to Barrett, had argued that was wrong for multiple reasons, including that the law itself called the tax a penalty.

Barrett’s essay seemed to take the side of her mentor, for whom she once served as a law clerk: “To the extent that NFIB v. Sebelius expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text, its approach is at odds with the statutory textualism to which most originalists subscribe. Thus Justice Scalia, criticizing the majority’s construction of the Affordable Care Act in both NFIB v. Sebelius and King v. Burwell, protested that the statute known as Obamacare should be renamed ‘SCOTUScare’ in honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat.” 

The penalty that was imposed on uninsured individuals was eliminated by the 2017 Tax Cuts and Jobs Act.

In 2015, in an interview with NPR, Barrett criticized the decision in King v. Burwell, another case regarding the Affordable Care Act, in which the Court upheld the legality of the program’s tax subsidies.

“It’s clearly a good result that these millions of Americans won’t lose their tax subsidies,” Barrett said, though she added that “the dissent has the better of the legal argument.”

Barrett, who is known for her originalist and textualist view of the law, has said Scalia had “incalculable influence” on her life and approach to the law, which is that the courts should not make policy — a position that stands in conflict with Biden’s repeated assertions that she is seeking to eliminate Obamacare.

“His judicial philosophy is mine, too: a judge must apply the law as written,” Barrett said of Scalia when President Trump announced her nomination. “Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”

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