Amy Coney Barrett compares legal doctrine at center of ACA argument to Jenga

Supreme Court nominee Amy Coney Barrett on Wednesday likened a legal doctrine that opponents are arguing would allow the Affordable Care Act to be struck down to the classic game Jenga.

Sen. Dianne Feinstein (D-Calif.) was questioning Barrett on the concept of “severability,” or whether a law can still stand if one part of it is ruled illegal.

“If you picture severability being like a Jenga game, it’s kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?” Barrett said. “Severability is designed to say well would Congress still want the statute to stand even with the provision gone?”

“That’s quite a definition,” Feinstein said. “I’m really impressed.”

Republican attorneys general arguing against the ACA employ the doctrine as evidence the Obama administration’s health-care law should be struck down if the court rules its individual coverage mandate is deemed unconstitutional.

Barrett’s views on “severability” and ObamaCare have been a focus on the Senate Judiciary Committee’s confirmation hearings because the Supreme Court is scheduled to hear arguments on the ACA on Nov. 10.

If confirmed, Barrett would be on the court for the hearings.

Earlier Wednesday, Sen. Lindsey Graham suggested “severability” could save the ACA because its “goal is to preserve the statue if that is possible.”

“From a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges,” Graham said. “Would it be further true, if you can preserve a statue you try to, if possible?”

“That is true,” she said.

Barrett was asked whether she spoke out in favor of the ACA by Sen. Patrick Leahy (D-RI) who noted as a law professor at Notre Dame she had criticized Chief Justice John Roberts’ decision upholding it.

“I was speaking as an academic,” she replied, later saying she “never had a chance to weigh in on the policy question.”

In a 2017 law review essay Barnett said Roberts, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

“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,” she continued.

Barrett said she had no preconceived views on the ACA.

“I am not here on a mission to destroy the Affordable Care Act,” she said. “I’m just here to apply the law and adhere to the rule of law.”

Barrett continued to protect her judicial independence as she fended off questions from the senators about how she would rule on issues expected to reach the courts like abortion, voting rights and the ACA.

Asked by Feinstein about a decision in April by the Supreme Court refusing to extend a Wisconsin judge’s ruling to extend voting in the state because of the coronavirus, Barrett said she couldn’t express her opinion about the case because she could have to hear a similar point down the road.

“That is obviously a very recent case,” she said. “And so again, it is one of those things that I can’t answer both because it would be requiring me to grade and express agreement or disagreement with the Supreme Court opinion, but also it is the kind of case that could come up in a closely related form either on the 7th circuit in Wisconsin … or the Supreme Court.”

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