- President Donald Trump nominated Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court.
- Experts and politicians are questioning how Kavanaugh could rule on cases involving Obamacare.
- Some conservatives say Kavanaugh will not go far enough to dismantle Obamacare, citing a dissent from 2011, while other conservatives believe the judge would rule against the law.
- Democrats and liberals are almost all fearful of Kavanaugh’s possible rulings on Obamacare.
President Donald Trump’s nomination of Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court has legal scholars and politicians carefully parsing the judge’s previous decisions for clues about the future of US policy.
One of the biggest issues on which Kavanaugh is expected to have a say is the future of the Affordable Care Act, or Obamacare. The landmark healthcare law has been the subject of a series of intense legal battles, and many observers expect more decisions on the ACA’s future to make it to the Supreme Court during Kavanaugh’s tenure.
Given Kavanaugh’s conservative bent, many Democrats are up in arms about the future of Obamacare should the judge be confirmed. But conservatives are also concerned about the future of the law under Kavanaugh.
The crux of the conservative disagreement over Kavanaugh’s Obamacare record comes from a single decision in 2011.
When ruling on Seven-Sky v. Holder, Kavanaugh dissented from the majority opinion that the law’s individual mandate – which compelled every American to have health insurance or face a fine – was constitutional.
“Even as he avoided a definitive ruling on the merits of the case, Kavanaugh revealed himself as favorably disposed to the mandate,” Jacobs wrote at The Federalist. “Worst of all, in so doing, he cultivated a theory that ultimately led Chief Justice John Roberts to uphold the mandate.”
In essence, Kavanaugh argued that he could not rule on the case because the Anti-Injunction Act of 1867 did not allow judges to rule on the legality of a tax before it was imposed. Since the mandate did not kick in until 2014, he wrote, the court could not render an opinion.
Jacobs wrote that Kavanaugh’s use of the century-and-a-half-old law validated the Obama administration’s argument before the Supreme Court that the mandate was legal since it was a tax.
Combined with other sections of the dissent, Jacobs said Kavanaugh gave the “road map” for the Obama administration’s legality argument and Roberts’s decision.
But other conservatives reject Jacobs’s suggestion that Kavanaugh’s dissent presented a legal basis to uphold the ACA by pointing to other sections of his argument.
In the dissent, Kavanaugh said the mandate was “a law that is unprecedented on the federal level in American history” and called the penalty for people not buying insurance “jarring.”
Justin Walker, a law professor at Louisville University and a former clerk for both Kavanaugh and Kennedy, wrote that the dissent was ultimately more an argument against the mandate than in favor.
“Kavanaugh’s thorough and principled takedown of the mandate was indeed a roadmap for the Supreme Court – the Supreme Court dissenters, justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, who explained that the mandate violated the Constitution,” Walker said.
Liberals worry Kavanaugh puts ‘healthcare protections in jeopardy’
While conservatives debated the semantics of Kavanaugh’s decision, Democrats and liberal activists were overwhelmingly alarmed by the nomination.
“Judge Kavanaugh should not be allowed anywhere near our nation’s highest bench,” a post on the Democratic Party’s official blog said. “Let’s be clear: a vote for Kavanaugh would be a vote to rip health care from American families and deny women their constitutional right to make their own health care decisions.”
Democrats and pro-ACA activists are worried Kavanaugh could weaken key tenants of the ACA, given new legal challenges to the underlying thesis of the law.
While experts are dubious the new challenges have standing, in no small part because Chief Justice John Roberts sided with the liberal members of the court in 2012 to uphold the law, Democratic senators have hinted healthcare will be a core piece of their opposition to Kavanaugh’s nomination.
“He’s demonstrated a hostility to the Affordable Care Act that the Trump administration is continually working to undermine,” Democratic Sen. Booker said in a statement following the nomination announcement.
Senate Minority Leader Chuck Schumer said during a press conference on the steps of the Supreme Court on Tuesday that Kavanaugh’s selection would put healthcare protections in the ACA, such as protections for people with preexisting conditions, “at grave, grave risk” and said people should demand a justice to “protect our healthcare, not strike it down.”