Amy Coney Barrett compares legal doctrine at center of ACA argument to Jenga


Supreme Court nominee Amy Coney Barrett on Wednesday likened a legal doctrine that opponents are arguing would allow the Affordable Care Act to be struck down to the classic game Jenga.

Sen. Dianne Feinstein (D-Calif.) was questioning Barrett on the concept of “severability,” or whether a law can still stand if one part of it is ruled illegal.

“If you picture severability being like a Jenga game, it’s kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?” Barrett said. “Severability is designed to say well would Congress still want the statute to stand even with the provision gone?”

“That’s quite a definition,” Feinstein said. “I’m really impressed.”

Republican attorneys general arguing against the ACA employ the doctrine as evidence the Obama administration’s health-care law should be struck down if the court rules its individual coverage mandate is deemed unconstitutional.

Barrett’s views on “severability” and ObamaCare have been a focus on the Senate Judiciary Committee’s confirmation hearings because the Supreme Court is scheduled to hear arguments on the ACA on Nov. 10.

If confirmed, Barrett would be on the court for the hearings.

Earlier Wednesday, Sen. Lindsey Graham suggested “severability” could save the ACA because its “goal is to preserve the statue if that is possible.”

“From a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges,” Graham said. “Would it be further true, if you can preserve a statue you try to, if possible?”