Soon to be Associate Justice Barrett wrote an article for the Notre Dame Law Scholarship Law Journal in 2017 that sheds some light on how she might think through the California v. Texas case. In the article, entitled “Countering the Majoritarian Difficulty“, Barrett seems to quite deferential to the executive and legislative branches. That may be a good thing for the ACA’s fate as restraint would tend to make her reluctant to overturn laws like the ACA.
However, on pages 80-84 of the article, she specifically suggests that Roberts’ majority opinion interpreting the penalty for not having health insurance a tax was flat out wrong – implying that she may believe that the ACA should be overturned on that basis:
In NFIB v. Sebelius… Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; 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.
Barrett’s doesn’t opine on whether the ACA should have been considered constitutional based on congress’ authority to regulate interstate commerce… although that’s irrelevant because that’s not a question in front of the court in Texas v. California.
The fate of the ACA will soon rest with 9 appointed people.
