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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

Ben Geman, author of Generate
Jan 19, 2021 - Energy & Environment

Federal court strikes down key Trump power plant rule

Illustration: Rebecca Zisser/Axios

A federal appeals court this morning vacated EPA carbon emissions regulations for coal-fired power plants, a victory for opponents of the Trump administration policy who criticized the rule as too weak.

Why it matters: The decision by the U.S. Court of Appeals for the D.C. Circuit will remove one hurdle for the incoming Biden administration as it seeks to implement new and wider-ranging policies.

Updated 1 hour ago - Politics & Policy

Trump dogs “dull” DeSantis ahead of potential 2024 matchup

Photo illustration: Sarah Grillo/Axios. Photo: Paul Hennessy/SOPA Images/LightRocket via Getty Images

Donald Trump is trashing Ron DeSantis in private as an ingrate with a "dull personality" and no realistic chance of beating him in a potential 2024 showdown, according to sources who've recently talked to the former president about the Florida governor.

Why it matters: The two are among the most popular Republicans in the country, and as the former president eyes another run in 2024, he's irked by DeSantis' popularity and refusal to rule out running against him.

Updated 1 hour ago - Politics & Policy

Omicron dashboard

Illustration: Brendan Lynch/Axios

  1. Health: Concerns grow over CDC's isolation guidelines — Experts warn of more COVID-19 variants after Omicron — WHO recommends 2 new treatments — What "mild" really means when it comes to Omicron.
  2. Vaccines: America's vaccination drive runs out of gas— Puerto Rico expands booster shot requirements— Supreme Court blocks Biden's vaccine mandate for large employers.
  3. Politics: Vivek Murthy calls SCOTUS vaccine mandate block "a setback for public health" — Focus group says Biden weak on COVID response, strong on democracy.
  4. Economy: America's labor shortage is bigger than the pandemic— — CDC COVID guidance for cruise ships to be optional starting Saturday — The cost of testing.
  5. States: America struggles to keep schools open — Youngkin ends mandates for masks in schools and COVID vaccinations for state workers.
  6. World: Beijing reports first local Omicron case weeks before Winter Olympics — Teachers in France stage mass walkout over COVID protocols.
  7. Variant tracker