Both Democrats and Republicans tried to gain a better understanding of how Supreme Court Candidate Amy Coney Barrett might decide on a challenge to the Affordable Care Act that the Supreme Court will hear next month, dancing around key legal issues related to the case.
For the second day of Barrett’s questioning on the Senate Judiciary Committee, the health bill was a dominant issue on both sides of the aisle, thanks to the looming November case the Supreme Court will hear about Republicans’ efforts to crush the bill – not election day to mention in less than three weeks.
The Senate Judiciary Committee is swiftly going through Barrett’s confirmatory negotiations, which will close Thursday, and getting the GOP-led panel on track to vote on her nomination next week. The Senate plans to vote on her nomination by the end of the month.
Both Judiciary Chairman Lindsey Graham and Senator Dianne Feinstein, the board’s top Democrat, asked President Trump’s Supreme Court candidate about the doctrine of “severability” or whether all of the law can exist if part of it is during Barrett’s second meeting will be deemed unconstitutional to raise questions before the committee on Wednesday.
It’s a concept that could play a key factor in the case of the Republican attorneys general and the Trump administration, which will attempt next month to crush the Affordable Care Act case. They argue that the entire law, commonly known as Obamacare, should be struck down as the law’s individual coverage mandate is unconstitutional.
Barrett told Feinstein, a California Democrat, that separability is like a game of “jenga”.
“When you think of separability as being like a game of jenga, is it like if you pull one out, you can pull it out while it is all standing? If you pull out two, it will all be standing?” Asked Barrett. “The severability clause is intended to say whether the Congress would like the statute to continue to exist even after the provision is no longer applicable.”
During his interrogation with Barrett, Graham appeared to suspect that the Affordable Care Act might be salvaged because of its severability, and said the “aim of the doctrine is to preserve the statute, if possible”.
“From a conservative standpoint, we generally want legislatures to legislate, not judges,” Graham said before asking Barrett, “Would it be further true if you can get a statue that you can try to get if possible?” “
“That’s true,” said Barrett.
“That’s the law, folks,” replied Graham.
The Republican Attorney General and Trump administration’s challenge to President Barack Obama’s health bill has become a central theme in this year’s election, thanks in part to Barrett’s endorsement. Democrats have focused their arguments during Barrett’s confirmation hearings on the way the law cares for individuals.
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See Amy Coney Barrett’s comments on separability: