Amy Coney Barrett, Originalism, and the Affordable Care Act: Possible Implications of the Newest Supreme Court Pick

January 29, 2021 | Sabrina Rodriguez

Edited by David Taylor

One of the most contentious aspects of the Obama-era Affordable Care Act (ACA) was its individual mandate. Through the individual mandate if an individual could afford health insurance but opted to not purchase it, they could potentially pay a fee (commonly referred to as a “shared responsibility payment”) through their taxes [1]. A hot-button issue since its inception, the individual mandate faced a threat to its existence when the Trump Administration attempted to alleviate it as part of the 2017 Tax Cuts and Jobs Act (TCJA). The TCJA did not eliminate the individual mandate, but it did lower the “shared responsibility payment” to zero dollars [2].

This development led to the question of the extent to which the individual mandate and the entirety of the ACA were linked. In December of 2019, the United States Court of Appeals for the Fifth Circuit declared that the individual mandate was unconstitutional. The Court of Appeals separated themselves from the policy implications of the ACA, negating to decide anything regarding the beneficence of the ACA. They declared the individual mandate unconstitutional because “it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power [3].”

However, the Fifth Circuit’s decision is broader than just the individual mandate portion of the ACA. The plaintiffs (a group of several states including Florida and Texas) sought to contend that because the mandate was unconstitutional and thus should be eliminated, then the entirety of the ACA should follow, as well. While the defendants agreed that the individual mandate being reduced to zero dollars did in fact make it unconstitutional, they argued that “those three provisions could be severed from the rest of the Act,” the three provisions being the individual mandate and the ACA’s guaranteed-issue and community rating requirements [4].

In November, the Supreme Court will hear oral arguments regarding Texas v. United States and are to decide whether the unviability of the mandate translates to the elimination of the ACA as a whole. This case is significant because when these arguments are heard, the Court will include Donald Trump’s newest Supreme Court appointee, Justice Amy Coney Barrett. Her nomination has important implications for this decision because of her commitment to originalism, a judicial interpretation that understands and applies the Constitution according to its meaning at the time when it was written. While there is no certain answer for what Justice Barrett will decide in this case, her past as well as her constitutional philosophy offer important insight to the future of the ACA with her on the bench.

One significant work that can allow one to hypothesize about the future of the ACA with Justice Barrett on the Supreme Court is her essay, published by Notre Dame Law School, Countering the Majoritarian Difficulty. The essay highlights many of her ideas regarding how the Constitution should be read, specifically through her usage of Randy Barnett’s In Our Republican Constitution as a tool for her argument. Barrett explains how Barnett shows that even the Founders of the Constitution had issues with democracy and how there is a real threat that a majority could infringe on minority rights [5]. Barrett highlights his argument and says “the republican vision of the Constitution counsels courts and constitutional scholars to worry less about preserving the product of the democratic process than about the way the democratic process is apt to trample the rights of individuals [6].”

Justice Barrett also discusses originalism and how it has shifted throughout history. She says that “[o]riginalism has shifted from being a theory about how judges should decide cases to a theory about what counts as a valid, enforceable law.” Most significant in her discussion of originalism is her explanation of why it continues to be important. She says that “[t]he Constitution’s original public meaning is important not because adhering to it limits judicial discretion, but because it is the law [7].” Through this passage, Barrett is backing away from arguing in favor of judicial restraint, which is often thought of to go hand in hand with originalism, and instead arguing for originalism as an adherence to the predetermined set of laws prescribed by the Founders.

After this discussion on originalism, Barrett transitions  into discussing Chief Justice Roberts’s ruling in NFIB v. Sebelius, arguing that “he has not proven himself to be a textualist in matters of statutory interpretation [8].” In NFIB v. Sebelius, where the Supreme Court upheld the individual mandate, Roberts accepted the argument that “the mandate was actually a tax, rather than a penalty [9].” Barrett believes that Roberts was not staying true to the Constitution and rather was “prioritizing purpose over text [10].” Barrett also characterizes what a faithful judge looks like, specifying that they resist “the temptation to conflate the meaning of the Constitution with the judge’s own political preference,” and says that judges that do not adhere to them “exceed the limits of their power by holding a statute unconstitutional when it is not.” Additionally, she says that the Constitution’s “fundamental law” must take precedence over statutes [11]. Barrett does not directly attack the ACA, but rather says that “Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute [12].” Justice Barrett means to present the opinion not on the basis of her own particular view on the policy, but rather on the broadening of the Constitution to support views, which she believes, do not exist within the document.    

Some believe Barrett’s comments on the ACA in the past do not translate to a certain decision while on the bench. Ramesh Ponnuru, in Amy Coney Barrett is No Threat to Obamacare, supports this viewpoint, arguing that “[t]here is no evidence that Barrett looks positively at this lawsuit,” and that her comments in her essay do not necessarily imply that she will seek to terminate the ACA during this particular case [13]. During her confirmation hearings, Barrett did not give an answer regarding even the broader scope of the case, and when asked whether she believed Social security and Medicare were constitutional, she said she could not “answer the question in the abstract [14].”

While it is certainly true that her previous views and refusal to answer may not necessarily indicate what decision she would make come November, Justice Barrett’s Constitutional adherence, in conjunction with her continuous need to think outside of what she calls “the abstract” does, at the very least, offer insight into how she may frame Texas v. United States according to her views. Barrett’s commitment to originalism means that for her to uphold the ACA and keep it separate from the individual mandate, she would have to find a specific portion of the Constitution to support it. This might not make her less inclined to uphold the ACA, but it does mean that both parties must focus on the Constitution and present their case in a way that it aligns with the text. Whether this is an appropriate way to conduct judicial review is beyond the scope of this article, however, it does represent what could be not just a shift in the Supreme Court, but a shift in the way people frame political issues in the United States.

Rodriguez is a senior double majoring in International Studies and History.


[1] “Individual Mandate Penalty You Pay If You Don’t Have Health Insurance Coverage.” HealthCare.gov.


[2]  Musumeci, MaryBeth. “Explaining California v. Texas: A Guide to the Case Challenging the ACA.” Kaiser Family Foundation. September 01, 2020.


[3] Texas v. United States, No. 19-10011, 3 (5th Cir. Dec. 18, 2019)

[4] Texas v. United States, No. 19-10011, 9 (5th Cir. Dec. 18, 2019)

[5] Barrett, Amy C. “Countering the Majoritarian Difficulty.” Const. Comment 32 (2017): 63.

[6] Ibid, 65.

[7] Ibid, 81.

[8] Ibid, 83.

[9] “NFIB v. Sebelius (2012).” Institute for Justice.


[10] Barrett, 83.

[11] Ibid, 82.

[12] Ibid, 80.

[13] Ponnuru, Ramesh. “Amy Coney Barrett Is No Threat to Obamacare.” Bloomberg. September 29, 2020.


[14] Ibid.

Photo Credit: Greg Nash, Getty Images.

0 comments on “Amy Coney Barrett, Originalism, and the Affordable Care Act: Possible Implications of the Newest Supreme Court Pick

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: