Senate Minority Leader Chuck Schumer on Tuesday continued his aggressive use of procedural tactics to squeeze vulnerable Republicans as the fight over the Supreme Court nomination of Amy Coney Barrett gets underway, this time setting up a Thursday procedural vote on a bill to bar the Department of Justice (DOJ) from arguing against the Affordable Care Act (ACA) in the Supreme Court next month.
Schumer, D-N.Y., with no Republicans on the floor to object to the move, filed cloture on the legislation. Normally it is only the majority leader who files cloture but Schumer has in recent days been using Senate procedure to put as much pressure on Republicans as possible over the Barrett nomination, which Democrats say puts the ACA in danger due to previous comments she made about the law before being confirmed to the federal bench.
"Nov 10—Trump admin will argue in the Supreme Court to rip health care from millions & end pre-existing condition protections," Schumer said in a Tuesday tweet. "I took extraordinary procedural steps to set up a Senate vote to block Bill Barr from continuing to support the lawsuit. Senate GOP: Time for you to vote."
Schumer's effort does not have the votes to proceed, but one way or another it will force Senate Republicans to go on the record on the ACA, also known as Obamacare. The Senate could simply vote on the motion, which needs 60 yeas to proceed, or Republicans could move to set aside the motion, which would need just 51 yeas. Either way, Republicans would almost certainly win the vote.
This was not the first example of procedural gymnastics from Schumer since Justice Ruth Bader Ginsburg died, opening a vacancy on the Supreme Court.
With electorally vulnerable Sen. Kelly Loeffler, R-Ga., chairing Senate proceedings, Schumer last week asked whether there was precedent for Supreme Court nominees being confirmed between July and Election Day of a presidential election year. Loeffler at the time replied that there was not, according to Senate records. She later pushed back with a statement for the record that noted three justices had been confirmed in July during the late 1800s and early 1900s.
And before that Schumer invoked the rarely-used "two-hour rule" to prevent the Senate Intelligence Committee from meeting for a briefing. The rule bars committee meetings without both sides' consent after the Senate has been in session for more than two hours. He said, referencing Republicans' plans to confirm a Trump Supreme Court nominee before the election, that "because Senate Republicans have no respect for the institution" he would not allow "regular order."
Senate Majority Leader Mitch McConnell, R-Ky., called Schumer's action a "temper tantrum."
Republicans, apparently predicting Schumer would again try to use the two-hour rule, adjourned the Senate until noon on Wednesday so he couldn't block the Senate Judiciary Committee hearing at 10 a.m. with former FBI Director James Comey.
The genesis of this fight is Republicans' insistence that they will fill the Supreme Court seat vacated by Ginsburg before the election and Democrats' desire to hold it open to be filled by whoever wins the presidential election on Nov. 3 -- they hope it's their party's nominee, Joe Biden.
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Democrats have accused Republicans of rank hypocrisy for moving to fill the seat just weeks before the presidential election after they held open late Justice Antonin Scalia's seat for months before the 2016 presidential election. Republicans have responded by noting Democrats have changed their stance too. Republicans have also said that generally when the Senate and White House are controlled by the same party, election-year Supreme Court vacancies are filled and when they are controlled by different parties the vacancies remain open. So, Republicans say, they are following what has historically happened.
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., who had previously promised that if a vacancy came up during the final year of Trump's term he would hold it open, has also said that after Democrats' treatment of Justice Brett Kavanaugh during his 2016 confirmation, any previous promises about judicial nominees are out the window.
President Trump at the Tuesday presidential debate perhaps summed the Republicans' argument up most succinctly.
"I will tell you very simply, we won the election. Elections have consequences. We have the Senate, we have the White House, and we have a phenomenal nominee," Trump said. "They had [Obama Supreme Court nominee] Merrick Garland. But the problem is they didn't have the election, so they were stopped."
Nevertheless, a Supreme Court seat has never been filled this close to a presidential election, so Republicans are acting without precedent on that point. Biden at the debate pointed out that ballots are already being cast -- according to the U.S. Elections Project, more than 1 million so far.
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And after the official nomination of Barrett on Saturday, Democrats have moved the ACA to center stage in the fight over her nomination, warning Americans that she puts their health care in danger.
"By nominating Judge Barrett to the Supreme Court, President Trump has put Americans' health care at grave risk," Schumer said at a Saturday evening press conference in New York City. "And as COVID-19 continues and we need more health care, the nomination by President Trump of Amy Coney Barrett will mean less health care for over 100 million Americans."
The Supreme Court is set to hear California v. Texas, a high-stakes case on the constitutionality of the ACA, on Nov. 10, just a couple weeks after Barrett will likely be seated on the court. The red states, led by Texas, that initially brought the case aim to invalidate the ACA on the grounds that its individual mandate -- which was upheld by the Supreme Court previously as a tax -- is now unconstitutional because Congress eliminated the financial penalty associated with not purchasing health insurance.
They say this makes it impossible to read the ACA as a tax anymore, so it is now simply an unconstitutional government mandate to purchase a certain product.
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Barrett, before being confirmed to her current appeals court post, had been seen as critical of the Supreme Court decision upholding the ACA, NFIB v. Sebelius. She wrote in a 2017 article that "[t]o the extent that NFIB v. Sebelius expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text, its approach is at odds with the statutory textualism to which most originalists subscribe."
Barrett, an ideological disciple of Justice Antonin Scalia, for whom she was a law clerk, is considered to be one of the foremost originalists in the U.S.
"Thus Justice Scalia, criticizing the majority’s construction of the Affordable Care Act in both NFIB v. Sebelius and King v. Burwell, protested that the statute known as Obamacare should be renamed 'SCOTUScare' in honor of the Court’s willingness to 'rewrite' the statute in order to keep it afloat," she wrote.
It however is not a guarantee that if the Supreme Court invalidates the individual mandate it will overturn the ACA entirely. The justices, if they decide that the mandate is unconstitutional, would then consider whether it is "severable" from the rest of the law. Some legal observers note that though the individual mandate was central to the ACA when it was passed, intervening congressional action has made it less important and thus potentially severable.
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Either way, Democrats have abandoned such nuances in their effort to stop the Barrett confirmation, which they warn would lead to an end of insurance protections for people with pre-existing conditions.
"Make no mistake: A vote by any Senator for Judge Barrett is a vote to take away health care and eliminate protections for millions with pre-existing conditions," Schumer said in a tweet. "Democrats are fighting for Americans’ health care."
Republicans have said that no matter the outcome of the California v. Texas case they will preserve insurance protections for those with pre-existing conditions. Trump issued an executive order on the matter last week, but Democrats have said it wouldn't have any force -- House Speaker Nancy Pelosi, D-Calif., said the order "isn’t worth the paper it’s signed on."
Democrats hope their procedural tactics and insistence on making health care a front-burner issue will convince moderate or electorally vulnerable Republicans to join them in trying to put off a confirmation vote on Barrett until at least after the election. That's all they can hope for, however, because Republicans without any unexpected defections have the votes to push through the Barrett nomination.
There are 53 Republican senators and only Sens. Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine, have said they have objections to processing the nomination before the election. If Murkowski and Collins both vote against Barrett, Republicans can still lose one more vote and have Vice President Pence break a tie.
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It does not appear that any other GOP senators, having expressed no objections about the process, would suddenly decide to oppose a Republican president's Supreme Court nominee. But Barrett's nomination still has numerous hurdles to clear, including meetings with senators, intense media scrutiny, days of hearings, a committee vote and finally a floor vote -- and that's if things go as planned for Republicans.
Schumer has made clear he and his fellow Democrats will resist those efforts every step of the way, and Obamacare is set to be the central issue.
"After failing more than 70 times to repeal the ACA in Congress, Republicans now want to rush Judge Barrett’s confirmation so she can help strike down the ACA in the Supreme Court," Senate Judiciary Committee Ranking Member Dianne Feinstein, D-Calif., said Wednesday. "What the President and congressional Republicans have failed to do legislatively, they will try to do through the courts."
Fox News' Chad Pergram, Paul Steinhauser and Jason Donner contributed to this report.