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Supreme Court nominee Amy Coney Barrett could be deciding vote in the constitutionality of the ACA

Barrett has been critical of past Supreme Court decisions upholding the ACA. 

Susan Morse, Managing Editor

President Trump nominates Amy Coney Barrett for Supreme Court. Getty Editorial Photo/Chip SomodevillaPresident Trump nominates Amy Coney Barrett for Supreme Court. Getty Editorial Photo/Chip Somodevilla

President Donald Trump has chosen Judge Amy Coney Barrett to fill the vacancy on the Supreme Court, a choice that could create a 6-3 split involving the crucial decision on the constitutionality of the Affordable Care Act and other healthcare issues.

A former clerk for the late Supreme Court Justice Antonin Scalia, Barrett is seen as his conservative heir.

Judge Barrett has served on the Seventh Circuit Court of Appeals, having been nominated by Trump in 2017.

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In making his choice public on Saturday, Trump said that Barrett has demonstrated a steadfast dedication to upholding the Constitution as written, and not legislating from the bench.

Trump said he wants Barrett confirmed before the November 3 election.  

Senate Republicans have the votes for confirmation, having a 53-47 majority. Only two Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, have said they would not vote on a nominee this close to the election.


House Speaker Nancy Pelosi has reportedly said the Democrats would focus their argument against Barrett's nomination on healthcare and the Affordable Care Act. An estimated 20 million people insured under the ACA would lose their coverage should the Supreme Court rule that the ACA is unconstitutional.

Oral arguments in the case of the legality of the Affordable Care Act are set for a week after the election on November 10.

Barrett has been critical of past Supreme Court decisions upholding the ACA. 

The case before the Supreme Court centers on the now defunct mandate for individuals to buy health insurance or face a tax penalty. Without the penalty, the ACA is invalid, argue Texas and other Republican-led states.

The GOP argument is based on a decision by the Supreme Court eight years ago. In 2012, the Supreme Court ruled that the ACA was valid due to Congress's ability to apply a tax penalty to individuals who did not get insurance coverage. Congress does have the power to tax, SCOTUS said. But it does not have the power to force people to buy health insurance.

The vote in 2012 was 5-4, with Chief Justice John Roberts the surprising vote in favor and writing the majority opinion. All in the majority in 2012, except Roberts, were nominated by a Democratic president. The four in dissent were appointed by Republican presidents.

Current justices appointed by Republican presidents are Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Barrett would be the sixth.

Current justices appointed by a Democratic president are Stephen Breyer, Sonia Sotomayor and Elena Kagan.


Barrett would take the seat vacated by the death of the more liberal-leaning Justice Ruth Bader Ginsburg on September 18.

Senate Majority Leader Mitch McConnell has pledged to hold a vote on Ginsburg's replacement.

Twitter: @SusanJMorse
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