Photo: Jim Lo Scalzo-Pool/Getty Images

Health care was by far the dominant issue in the Senate Judiciary Committee’s confirmation hearing yesterday for Judge Amy Coney Barrett.

The big picture: After promising for 10 years to get rid of the Affordable Care Act, and with a lawsuit pending at the Supreme Court that could do exactly that, Republicans are making a new argument: c’mon, nobody’s getting rid of the Affordable Care Act.

  • “I’m not here on a mission to destroy the Affordable Care Act,” Barrett said yesterday.
  • She has criticized the Supreme Court’s previous decisions upholding the ACA, but was quick to emphasize the difference between those cases and the one she might hear. She refused to entertain hypotheticals about how she might rule.

Between the lines: The ACA is on the chopping block yet again at the Supreme Court.

  • But with Barrett on an apparent fast track to confirmation, Democrats’ litany of personal stories — especially when they were coming from vice presidential candidate Kamala Harris — sounded like more of a 2020 campaign message than a legal argument.
  • So did Republicans’ sudden insistence that their party’s efforts to kill the ACA are not going to succeed.

What they're saying: Sen. Mike Crapo brought up a moot-court exercise in which Barrett “ruled” that the ACA’s individual mandate was unconstitutional, but let the rest of the law stand.

  • “I think that's kind of an answer, frankly, to a lot of those who are raising this specter that you're going to take the whole Affordable Care Act away from everyone because of this very narrow case,” he said, despite Barrett’s repeated reminders not to read a real legal position into that practice exercise.
  • The court's original case over the ACA's individual mandate “has nothing to do” with the case now before the court, Sen. Mike Lee said during his questioning.
  • "Nobody believes the Supreme Court is going to strike down the Affordable Care Act,” Majority Leader Mitch McConnell said during a debate Monday night in Kentucky.

Reality check: Republican attorneys general and the Trump administration are asking the Supreme Court to strike down the entire law, and will make that case in oral arguments on Nov. 10.

  • As Barrett explained several times, the issue in this case is whether the individual mandate has become unconstitutional, and then, if so, how much of the rest of the law is “severable” from the mandate.
  • The court may well rule, as congressional Republicans seem confident, that the mandate can fall on its own. (They could also uphold the mandate again, though that seems unlikely.)

But any time the Justice Department takes a position before the Supreme Court, that position is worth taking seriously. And in this case the Justice Department is telling the court to strike down the whole law, including its protections for people with pre-existing conditions.

What’s next: Republicans have never released a plan to replace the ACA’s consumer protections, should they finally kill it, whether they still want to or not.

Go deeper

Only 3% of Americans have no opinion on whether Barrett should join Supreme Court

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Only 3% of Americans have no opinion on whether Judge Amy Coney Barrett should be confirmed to the Supreme Court, per a Gallup poll released Tuesday.

Why it matters: It's a historic low for those who have no opinion on a pick to the high court in Gallup's initial polling — previously, 19% had no opinion on Merrick Garland, Sonia Sotomayor and John Roberts — and it highlights the extremely polarized nature of today's politics.

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Supreme Court denies Pennsylvania GOP request to limit mail-in voting

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The Supreme Court on Monday denied a request from Pennsylvania's Republican Party to shorten the deadlines for mail-in ballots in the state. Thanks to the court's 4-4 deadlock, ballots can be counted for several days after Election Day.

Why it matters: It's a major win for Democrats that could decide the fate of thousands of ballots in a crucial swing state that President Trump won in 2016. The court's decision may signal how it would deal with similar election-related litigation in other states.

Updated Oct 16, 2020 - Axios Events

Watch: News Shapers unpack the SCOTUS confirmation hearings

On Friday, October 16 Axios' Mike Allen and Margaret Talev hosted a conversation to unpack the news of the day, including coverage of Amy Coney Barrett's Supreme Court confirmation hearings, featuring Sen. Chris Coons and Trump 2020 senior advisor for strategy Steve Cortes.

Steve Cortes discussed current national and state polls on the November election. According to Axios reporting, Biden maintains a double-digit lead over Trump nationally, but state polls are narrower.

  • On the importance of looking at states that will be key to securing Electoral College votes: "It's most important, I think, for us to highlight to our supporters, to everybody, that battleground state polls are what matter most,"
  • On Biden's double-digit lead: "In reality, they don't believe that they are up double digits nationally. We [at the Trump campaign] certainly don't believe that. And again, it's not a national election. It's a state by state election."

Sen. Chris Coons discussed the SCOTUS confirmation hearings, and expressed that Judge Amy Coney Barrett will likely to be confirmed by the Senate and appointed to the Supreme Court, barring a significant change from Republicans.

  • On the confirmation hearings: "The only thing that could happen to stop that at this point would be a real change of heart on the part of a number of our Republican colleagues."
  • Why Sen. Coons isn't voting to nominate Judge Amy Coney Barrett: "[Because of] her view towards reaching back and reexamining and overturning long-settled precedent...from labor rights and environmental protection, to Native American rights, to the rights of criminal defendants and privacy and health care."

Thank you Bank of America for sponsoring this event.