Dems see Kavanaugh as Obamacare threat, but law likely safe
BOSTON » The heated debate over how Supreme Court nominee Brett Kavanaugh would vote on the Affordable Care Act might not matter. As long as five past defenders of the health care law remain on the nation’s highest court, the odds tilt in favor of it being allowed to stand.
Some Democrats are warning that President Donald Trump’s designee could spell doom for the statute, even as some conservatives are portraying Kavanaugh as sympathetic to former President Barack Obama’s landmark legislation.
But where Kavanaugh would vote if he joins the Supreme Court is less clear than both sides suggest, according to an Associated Press review of the appeals court judge’s decisions, other writings and speeches.
Kavanaugh could get to weigh in on the health care statute if the high court takes up a lawsuit brought by Texas and 19 other states. Those states are seeking to strike down the entire law because the Republican-backed tax overhaul removed fines for not having health insurance.
The Trump administration recently said in that case that it will no longer defend the ACA’s protections for people with preexisting medical conditions, nor its limits on how much insurers can charge older customers.
But if Chief Justice John Roberts joins the four Democratic appointees in upholding the law — as he did in the two previous challenges — Kavanaugh wouldn’t be the deciding factor. Retiring Justice Anthony Kennedy joined the majority on the second decision, in 2015, for a 6-3
majority.
Still, Timothy Jost, emeritus professor at the Washington and Lee University School of Law, said while there are some clues, it’s not clear how Kavanaugh would view a health care case as a justice.
“In what he has written so far, I don’t see Kavanaugh as an existential threat to the Affordable Care Act,” Jost said. But “he may well develop into one” when he has the power to throw out Supreme Court precedent, he added.
Some conservatives see Kavanaugh as the author of “a road map” for upholding the health care overhaul, while liberals fear he’ll be a willing tool for Trump’s efforts to scuttle it.
At the heart of the debate is Kavanaugh’s lengthy 2011 dissent in a challenge to the individual mandate, the requirement that people have health insurance or pay a penalty. Kavanaugh, a judge on the
U.S. Court of Appeals for the District of Columbia Circuit, argued that federal law required the appeals court to turn away the case until challengers had actually paid the fine, and urged his colleagues to not rush to answer the consequential constitutional question.
“After all, what appears to be obviously correct now can look quite different just a few years down the road,” Kavanaugh wrote in the dissent.
At least one conservative critic has blamed Kavanaugh for providing the theory that led Roberts to save the law in 2012. Kavanaugh’s conclusion that the fee for not having health insurance is a “tax” — even though Congress called it a “penalty” — was echoed by Roberts in his explanation for upholding the individual mandate.
Kavanaugh also said the courts “should be wary of upending” the law, and
suggested that “just a minor tweak” could ensure its constitutionality.
But in his opinion, Kavanaugh also called the health care overhaul unprecedented and expressed concern about legislative overreach, saying “we should hesitate to unnecessarily decide a case that could usher in a significant expansion of Congressional authority with no obvious principled limit.”
Justin Walker, a University of Louisville law professor who clerked for Kavanaugh, calls conservative criticism “nonsense.” Walker wrote he was certain that “the only justices following a roadmap from Brett Kavanaugh were the ones who said Obamacare was unconstitutional.”
At the same time, Democrats are using the law’s protections for people with pre-existing conditions as a rallying cry in the fight against Kavanaugh.