Trump's attempt to roll back Obamacare is the 'orange cloud' over Amy Coney Barrett's nomination, Democrat says

Supreme Court is set to hear case on Obamacare beginning 10 November

Senator Richard Durbin accused Donald Trump and Republicans of rushing through Amy Coney Barrett’s Supreme Court nomination in the middle of a presidential election because they want another conservative justice on the bench to help dismantle Obamacare when the court rules on a crucial case regarding the 2010 health care law next month.

To punctuate that accusation, Mr Durbin, an Illinois Democrat, made a veiled reference to the president’s penchant for getting orange-ish spray tans.

“There is a political agenda here. Whether you are privy to it, part of it, notwithstanding, it has to do with the Affordable Care Act,” Mr Durbin told Ms Barrett of the circumstances surrounding her nomination.

“November 10 is the absolute date they have to fill the vacancy if the president, and those who support him, and those who support the Republican platform are going to keep their promise to end the Affordable Care Act. They need that ninth justice, and that's why it has to be hurried. Unfortunately, that is the cloud — the orange cloud — over your nomination,” Mr Durbin said.

The Supreme Court is set to begin listening to oral arguments on 10 November — just seven days after the 2020 presidential election — on yet another legal challenge to Obamacare.

On one side is a cadre of Republican state attorneys general, backed by the Trump administration, who have argued that the 2010 health care law is unconstitutional because the GOP’s 2017 tax code overhaul eliminated the tax penalty for people who do not comply with Obamacare’s individual mandate for Americans to purchase health insurance.

After a district court judge in Texas ruled in favour of the Republicans in 2018, Democrats petitioned the Supreme Court to hear and rule on the case.

Most legal scholars — both conservatives and liberals — have said Congress passing a law that rolls back one provision from a broad legislative package such as Obamacare should not render the entire rest of that package unconstitutional.

Throughout the Supreme Court’s history it has sought to issue rulings that employ a narrow theory “severability” — that is, the court has generally tried to uphold the rest of a law that is not affected by the specific provision in question.

At Ms Barrett’s hearing on Wednesday, Senate Democrats quizzed her about the legal theory of “severability” to try to gain insight into how she might rule on the Obamacare case with oral arguments before the court on 10 November.

“I think the doctrine of severability, as it's been described by the court …  serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work,” Ms Barrett said.

“Severability strives to look at a statute as a whole and say, 'Would Congress have considered this provision so vital that — kind of like in the Jenga game — pulling it out, Congress wouldn't want the statute anymore?'” she said.

“It's designed to effectuate your intent, but … severability is designed to say, ‘Well, would Congress still want the statute to stand, even with this provision gone? Would Congress have still passed the same statute without it?’”