https://www.nationalreview.com/2020/10/barrett-obamacare-and-severability-again/
Democrats don’t have much chance of derailing Barrett’s nomination, so they might as well use the high-profile hearings to campaign.
C learly, a big issue in Day Two of the Barrett confirmation hearings is the Obamacare case before the Supreme Court. Judiciary Committee chairman Lindsey Graham (R., S.C.) began the day by drawing out the nominee, Judge Amy Coney Barrett, on the Court’s doctrine of severability.
Here’s why it’s important.
Democrats are claiming that President Trump and Republicans are trying to rush Judge Barrett onto the Court in time for her to rule on Texas v. California, a challenge to the Affordable Care Act that the justices will hear on November 10 — a week after Election Day. As I’ve repeatedly observed, it is a weak challenge, not remotely as strong as the original challenges to the ACA that the Court nevertheless rejected. Yet President Trump directed his Justice Department to join Texas and the other states who are arguing that the ACA must be invalidated.
They theorize that because the individual mandate has been “zeroed out,” it no longer qualifies as a tax and must be invalidated, since its being a tax was the basis on which the Court upheld it in NFIB v. Sebelius (2012). Extravagantly, and far more dubiously, the states joined by the Trump administration contend that, because the mandate was so central to the ACA, the invalidation of the mandate necessitates the invalidation of the entire, extensive ACA statutory scheme (which includes some popular provisions, particularly coverage of people with preexisting conditions).