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FATE OF OBAMACARE MAY DEPEND ON SPEED OF BARRETT APPROVAL

The U.S. Supreme Court is scheduled to hear a case regarding the Affordable Care Act (Obamacare) on November 10. If Amy Coney Barrett is not approved before oral arguments on a case (in the case affecting Obamacare, it is November 10), then she will not be permitted to participate in making a decision unless the case is reargued. As Senate Majority Leader Mitch McConnell stated, the only thing stopping the approval of Amy Coney Barrett is Covid-19. At the time of the writing of this article, three Republican Senators (Lee of Utah, Tillis of North Carolina and Johnson of Wisconsin) including two on the Senate Judiciary Committee (Lee and Tillis) have tested positive for Covid-19. A majority of Senators is needed to approve Barrett. There are 53 Republican Senators and only two Republican Senators have stated they will oppose any nominee until after the election (they believe whomever wins the election should have the right to choose a nominee). Since Republicans only have a slim majority of Senate and a floor vote must be held in person, the health of Republican Senators (Democrats are unanimous in their opposition to choosing a nominee before the election) will make a difference if confirmation hearings will be made the last week in October as presently planned.

There is no doubt that Democrats that are Judiciary Committee members will question Barrett on her stance on the Affordable Care Act (as well as abortion rights) at the hearings. Based on prior decisions, it is likely that the liberal judges and Chief Justice Roberts will follow the California case view (which would keep Obamacare as is) whereas Barrett would likely be in favor of full invalidation (the Texas court case view). If oral hearings are only before eight justices and it was 4-4, then it would likely be remanded to the district court and then appealed to the Fifth Circuit and then to the Supreme Court. If Democrats win the election with a majority of Representatives and Senators, then it is possible the law could be revised to keep Obamacare.

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