Predictably, Democrats pulled out their old so-called Affordable Care Act (ACA), commonly known as Obamacare, playbook to attack President Trump’s nomination of Judge Amy Coney Barrett to the U.S. Supreme Court. In a press conference, held minutes after the Barrett nomination, Senate Minority Leader Chuck Schumer announced he opposes her nomination. No surprise there, James Madison, Alexander Hamilton and Oliver Wendel Holmes would be opposed by the Democrats if nominated by President Trump.
Schumer wasted no time to immediately make the Obamacare argument. He said that Barrett opposes the ACA and would be a swing vote. He said that with Barrett on the Supreme Court “… it’s a virtual certainty that over 150 million Americans health care will be hurt dramatically. A vote for Amy Coney Barrett is a vote to decimate the health care that so many Americans need.” Soon after, Joe Biden and Kamala Harris echoed the same theme.
This is the playbook Democrats have been using against Republican candidates across the country. I see it in my home state of Arizona in the negative attack ads by friend-of-China U.S. Senate Candidate Mark Kelly against Senator Martha McSally. What Democrats are doing is saying that any opposition or vote against Obamacare is a move to take away insurance from people with pre-existing conditions. Perhaps a little review of the history of the ACA is in order.
In 2009, Obamacare was sold to the American people with falsehoods. Remember, “If you like your plan you can keep your plan,” and “if you like your doctor you can keep your doctor”? There was also the claim that ACA would “lower Americans health insurance costs by $2,500 a year.” These all turned out to be untrue. MIT professor Jonathan Gruber, a principle architect of the plan, admitted as much in a video recorded in October 2013.
The ACA was taken to court as being unconstitutional. How could the federal government mandate that citizens buy a certain product such as insurance? There is nothing in the Constitution that gives such power to the federal government. Now you may be wondering “But don’t I have to buy car insurance?” Yes, but those vehicle insurance mandates are done by states not by the federal government. And for the very reason that no such power was ever seen before in the U.S. Constitution.
In 2012, Chief Justice Roberts, despite years of the Obama Administration claiming Obamacare was not a tax, sided with the four liberal Justices on the Court to rule that the mandate was a tax within Congress’ taxing authority. Justice Roberts’ decision to play politics with the ruling serves as the basis for Democrats’ current attacks against Amy Coney Barrett and Republicans at-large. As is often the case in politics, the reality of the situation paints a starkly different picture.
President Trump has said repeatedly that Republicans will always protect people with pre-existing conditions. He even recently said he will sign an executive order protecting coverage for individuals with pre-existing conditions as an added level of certainty for Americans. There is no question that Republicans will protect people with pre-existing conditions and Democrats’ attempts to claim otherwise is simply false.
Which brings us to Judge Barrett. At her nomination ceremony she pointed to the late Supreme Court Justice Scalia as her mentor and the fact that she shares his judicial philosophy. In a 2017 Notre Dame Law Journal article, Judge Barrett quotes from Justice Scalia’s dissent in the ACA case. Barrett notes that the statute, as written, referred only to a “penalty” for not buying insurance. The law never mentioned anything about a “tax.” Her article aptly pointed out that Roberts was not interpreting the law as you would expect from a “textualist” justice like Scalia, and presumably herself.
Obamacare was sold to the American people on a foundation of lies. The Supreme Court case permitting it was based on lies, or at the very least an unstable legal justification, and the present attacks being leveled by Democrats are based on lies. Democrats, despite all of their handwringing and chaotic cries of judicial bias, ultimately want judicial activism—they just want it in support of their radical agenda.
To understand why Democrats fear Judge Barrett, we need only to look so far as her own words. In fact, in the same 2017 Notre Dame Law Journal article, Barrett proclaims, “a faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference…”
You see, the real threat to Democrats’ plans for the Supreme Court are justices like Scalia, Thomas, and soon, Barrett, who view and interpret the document as originalists—with reverence and respect for the original document and take their commitment to textual fidelity seriously—rather than as political activists.
America would be well served to have a Supreme Court Justice with the clear, originalist philosophy and judicial integrity of Judge Barrett.
Jake Hoffman is a contributing columnist at Townhall, the President and CEO of Rally Forge, one of the nation’s top conservative digital communications and media strategy firms, and an elected official in Arizona. Follow him on Facebook and Twitter.