Senators: Memo for the Record — Do Not Confirm Amy Coney Barrett for the Supreme Court

 

Her judicial record is slim and sketchy to say the least

(She is not prepared for this lifetime appointment)

Subject: Judge Amy Coney Barrett nomination for the Ginsburg seat vacancy on the USSC. Early issues for the senate to address during her confirmation hearing if and when that might happen include thus far:

1. Gun Rights (2^nd Amendment): The right have a gun for former felons (Washington Post article). Supporters are enthusiastic about her 37-page dissent in Kanter v. Barr, in which she argued: “Only those former felons shown to be dangerous may be stripped of their Second Amendment rights to guns, but that simply being convicted of a felony is not enough.” The opinion shows that she takes the Constitution’s text and history seriously and that she is committed to holding the government’s feet to the fire when individual rights are at stake.

Okay, fair enough – how about voting rights for felons – not allowed to regain voting rights in some states?  They serve their time, but many still can’t vote unless they pay a fine for what, serving prison time, isn’t that payment enough (cite: FL law now in effect).

2. Roe v. Wade (1973): (from Bloomberg). Barrett put her name on a newspaper Ad that: “Decried the infamous 1973 Roe v. Wade ruling that had killed 55 million unborn children over four decades” (from her new disclosure to the Senate). The 2013 Ad was in the University of Notre Dame’s student newspaper and was sponsored by a faculty group to which Barrett belonged as a law professor.

That Ad said: “In the 40 years since the Supreme Court’s Roe v. Wade decision, over 55 million unborn children have been killed by abortions. We faculty and staff at the University of Notre Dame reaffirm our full support for our university’s commitment to the right to life, we renew our call for the unborn to be protected in law and welcomed in life, and we voice our love and support for the mothers that bear them.”

A separate Ad came to light recently but not released by Barrett. It said: “We (the Ad signers) oppose abortion on demand and defend the right to life from fertilization to natural death; and we call for end to the barbaric legacy of Roe v. Wade.”

3. Overturning the ACA (2010). Excellent rundown here from the ABA Journal, with under this headline (my notes added to fit the blog):

“Would Barrett ax the Affordable Care Act? She has expressed some views; severability is a question mark.”

Liberal groups are running Ads warning that U.S. Supreme Court nominee Judge Amy Coney Barrett will vote to overturn the Affordable Care Act (ACA-Obamacare) if she is confirmed to the Supreme Court. What are her views on the subject?

The Supreme Court has accepted a new challenge to the Obama administration’s health care law that is based on Congress’ decision in 2017 to lower the tax penalty to zero for failure to carry insurance.

The case is set to be argued November 10 (FYI Note: USMC 245^th birthday of founding November 10, 1775).

In previous critiques of the law, Barrett criticized the initial Supreme Court decision that upheld it and opposed a provision involving birth control, report the Washington Post, Reuters, and the New York Times.

The Supreme Court had upheld the law in June 2012, holding that Congress had the authority to adopt it under its taxing power.

After Congress dropped the tax penalty, the 5th U.S. Circuit Court of Appeals at Louisiana ruled that the mandate requiring individuals to carry health insurance was no longer constitutional.

The DOJ has argued that the elimination of that tax penalty requires the Supreme Court to strike down the entire ACA.

Besides requiring individuals to carry insurance, the ACA has several protections:

1.    Bars insurers from denying coverage to people with pre-existing conditions;

2.    Bars insurers from charging more money because of a person’s risk profile;

3.    Allows children to have coverage through their parents’ policies until age 26;

4.    Guarantees “essential benefits” such as for mental health, maternity, and drug coverage;

5.    Expands Medicaid; and

6.    Establishes insurance exchanges to allow customers to compare and buy insurance plans (e.g., Individuals buying insurance on the exchanges get subsidies to help pay their premiums if they earn less than $51,000 per year).

Trump’s con (my view): Trump signed an EO stating that it is U.S. policy to protect people with preexisting conditions.

But the order did not explain how the policy would be carried out if his administration succeeds in overturning the entire law.

Typical Trump Translation: “Either my way, or no way.”

Barrett also criticized the majority opinion upholding the law, written by Chief Justice John Roberts in a 2017 article.

Roberts had written that Congress had the authority to require individuals to buy insurance — or to pay a penalty — under its taxing power.

Barrett wrote: “Roberts pushed the ACA beyond its plausible meaning to save the statute. If Roberts had interpreted the required payment as a penalty, he would have had to invalidate the statute as lying beyond Congress’ commerce power.”

Barrett also wrote about the ACA in a critique of a book written constitutional law by Randy Barnett, a professor at the Georgetown University Law Center: “… contending that Congress did not have the constitutional authority to enact the health law’s insurance mandate. Barnett also vehemently objects to the idea that a commitment to judicial restraint — understood as deference to democratic majorities — can justify a judicial refusal to interpret the law as written. Barnett is surely right that deference to a democratic majority should not supersede a judge’s duty to apply clear text.”

Barrett also signed a petition in 2012 objecting to the health care law’s requirement to require most employer health insurance plans to include contraception coverage.

The petition said an Obama administration accommodation for some objecting employers — which shifted payment for the coverage to third parties — did not go far enough.

That petition also further said: “That mandate was an assault on employers’ religious liberty, and the rights of conscience. The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception and sterilization. This is a grave violation of religious freedom and cannot stand. It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick.”

The Trump administration has since expanded the exemptions to allow employers to opt out of providing contraceptive coverage based on religious or conscience objections. Apparently based on a July decision wherein the Court ruled that the plain language of the ACA gives federal agencies the authority to create the exemptions.

In yet another opinion on the ACA, the Supreme Court ruled in June 2015 that the ACA allows subsidies for low-income people who purchase health insurance through federal exchanges.

In a 2015 radio interview, Barrett said the dissent by Justice Antonin Scalia had the better argument when he argued: “The majority advanced argument after feeble argument in an opinion made up of interpretive jiggery-pokery.”

Last key point: One unknown, should Barrett be confirmed in time to hear the latest challenge to the law, is her view on severability — whether some parts of a law can still stand if other parts are struck down.

Barrett to date has not participated in any cases involving that concept, nor has she written about it, according to the Washington Post.

Thus, it is possible the Supreme Court will allow parts of the health law to stand, even if it strikes down the insurance requirement. Reuters and SCOTUS Blog point to a statement by Justice Brett Kavanaugh in a case that struck down an exception to a federal ban on Robocalls while allowing the rest of the law to stand. Kavanaugh wrote: “Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.”

My 2 cents: A great ABA piece. I will update this as the confirmation process moves along – whenever and however long it takes place.

Related opinion article re: Senator Sullivan (R-AK) from the Anchorage Daily News on him standing for principle and not standing for Barrett based on his past record vis-à-vis Judge Garland mess that Mitch McConnell stirred up.

Re: Judge Merrick Garland vis-à-vis Judge Amy Coney Barrett a comparison (her record is above – his follows):

Garland is serving as a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit ever since 1997.

Barrett has been on the bench only three years and has no trial experience at all.

On March 16, 2016, then President Obama nominated Garland to fill the vacancy created by the death of Justice Scalia. Sen. Mitch McConnell (R-KY) refused even to hold a committee hearing or vote on his nomination saying there was not enough time in the election year (there was over 7 months) – now only 40 days or so.

Senate Republicans' unprecedented refusal to consider that nomination was considered highly controversial and it lasted 293 days and expired on January 3, 2017, at the end of the 114th Congress. The seat Garland was nominated for was eventually filled by Neil Gorsuch, appointed by Trump. What do we call that: Oh, yeah blatant hypocrisy.

As always stay tuned and make your voice heard as much as possible.

Thanks for stopping by.