WASHINGTON -- Republicans have been working for a decade to destroy the Affordable Care Act. Judge Amy Coney Barrett has criticized Supreme Court decisions that failed to do so. And it looks like she will be on the court next month for arguments in a third major challenge to the law pressed by Republican state officials and the Trump administration.
All of this, Democrats have said, puts the law in grave peril.
But some Senate Republicans had a surprising response on Wednesday: They pointed to a doctrine of statutory interpretation called severability. Because of it, they suggested, their allies' own case against the health care law was a toothless exercise that was likely to fail.
It was an admission that the focus by Democrats on attacking Republicans -- and Judge Barrett -- for threatening the future of Affordable Care Act in the midst of the coronavirus pandemic has hit home.
Just minutes after the start of the second and final day of questions for Judge Barrett at her confirmation hearings, Senator Lindsey Graham, Republican of South Carolina, invited her to describe the severability doctrine. She knew why he was asking, and she was ready to play ball.
"What it means," she said, "is if you have a statute -- and the Affordable Care Act is obviously a very long statute -- if there is one provision within the statute that is unconstitutional, the question is whether that one section can simply be rendered null and excised from the statute."
That is the key issue in next month's case. After Congress zeroed out the penalty originally imposed by the legislation for not obtaining insurance under the so-called individual mandate, Republican state officials argued that the mandate was now unconstitutional. They added, more significantly, that this meant the entire law must fall.
In legal terms, they argued that the mandate was not severable from the balance of the law. In the Supreme Court, the Trump administration filed a brief saying precisely that: "The individual mandate is not severable from the rest of the act."
Severability is the legal equivalent of a game of Jenga: If you pull out one plank, will the entire tower topple?
Judge Barrett did not say how she would vote in the pending case, but her summary suggested that she was skeptical of the maximalist arguments made by the administration.
"The presumption is always in favor of severability," she said.
Mr. Graham summarized what he had heard. "The main thing is the doctrine of severability has a presumption to save the statute if possible," he said. That was, he said, a conservative approach that allows Congress rather than the courts make the key policy decisions.
"I want every conservative in the nation to listen to what she just said," Mr. Graham said. "That is the law, folks."
The senator, if not the nominee, seemed to say that the health care law was not in real danger next month and that Judge Barrett's presence would not alter the calculus.
Legal experts were reluctant to draw broad conclusions from the exchange.
"Reading the tea leaves here is hard," said Nicholas Bagley, a law professor at the University of Michigan who filed a supporting brief in the new Supreme Court case along with scholars across the ideological spectrum. The brief argued that "the question here is not debatable: The mandate is severable from the rest of the A.C.A."
"To my eyes," Professor Bagley said, "the most telling part of Barrett's response is her aside that 'the Affordable Care Act is obviously a very long statute.' Her response suggests -- very weakly -- that she may see something anomalous about unraveling all of Congress's handiwork just because a toothless mandate is constitutionally defective."