July 16, 2018
Supreme Court nominee Brett Kavanaugh has not
staked out a strong ideological position in his major health law opinions
Judge Kavanaugh has made it clear that he
supports a more expansive role for the courts
Brett Kavanaugh, President Trump’s Supreme
Court nominee, has served on the Court of Appeals for the District of Columbia
Circuit for more than a decade. In this capacity, he has written opinions in a
number of cases involving controversial health care issues. In only one did
Judge Kavanaugh write for the majority; the others were dissenting opinions.
This post analyzes Judge Kavanaugh’s opinions
in the five major health law cases in which he has been involved. It then
discusses what we can learn from these opinions as to how Judge Kavanaugh might
decide health care disputes as a Supreme Court Justice.
Affordable Care Act
Cases
In two Affordable Care Act (ACA) cases,
Kavanaugh dissented from the majority opinion that had rejected a challenge to
the ACA. In both, however, he objected only to the reasoning of the court; he
agreed with the majority that the complaint against the ACA should have been
rejected.
Seven-Sky v. Holder was one of a spate of lawsuits challenging the
constitutionality of the ACA’s individual responsibility requirement filed soon
after its adoption. The majority of the Seven-Sky judicial
panel held that the requirement was a constitutional exercise of Congress’s
power to regulate interstate commerce (a position rejected by the Supreme Court
in its NFIB decision, which upheld the constitutionality of the
mandate). Kavanaugh would have instead treated the mandate as a tax (a position
later accepted by the Supreme Court), and dismissed the complaint under the Tax
Anti-Injunction Act.
In another case, Sissel v. U.S. Department of Health and Human Services (HHS), the
plaintiff asserted that the ACA was unconstitutional because it was a revenue
bill that originated in the Senate and not in the House, as required by the
Constitution. Kavanaugh agreed with the majority that the ACA did not violate
the Constitution’s origination clause, but would have analyzed the issue
differently.
In neither case did Kavanaugh evidence strong
opposition to the ACA. After a long discussion of the Tax Anti-Injunction Act
in Seven-Sky,Kavanaugh concluded his opinion by musing about the
possible invalidity of the mandate under Congress’s commerce power. On the one
hand, he entertained arguments that the mandate encroached on state authority
and individual rights, but on the other, he suggested that it was a novel
approach to providing safety-net services through the private sector. Seeing
both sides of the argument, he concluded that the court should avoid a
constitutional ruling until the case was properly before it.
Abortion, Contraception,
and Medicare Entitlement Cases
In Garza v. Hargan, Kavanaugh dissented from a decision
by the majority of active D.C. Circuit judges, which allowed the district court
to permit a minor immigrant in U.S. custody to obtain an abortion. Kavanaugh,
who had earlier ordered a stay in the lower court’s order permitting an
abortion as part of a three-judge panel, provocatively criticized the en
banc majority decision as “ultimately based on a constitutional
principle as novel as it is wrong: a new right for unlawful immigrant minors in
U.S. Government detention to obtain immediate abortion on demand” in a dissent
from the court’s decision to reverse his order.
In fact, however, Kavanaugh’s dissent,
acknowledging Supreme Court authority following Roe v. Wade, argued
only that delaying the abortion to allow the government more time to find a
sponsor for the minor would not have posed an “undue burden” to her abortion
rights. Judge Millet, concurring in the en banc decision,
argued to the contrary that further delay would impose a serious burden.
Kavanaugh did not join the dissent of another judge who would have gone further
and found that a minor undocumented immigrant has no constitutional right to
have an abortion.
In a 2017 speech, Judge Kavanaugh praised former Chief Justice
Rehnquist for his dissent in Roe v. Wade and his resistance to
recognizing constitutional rights not explicitly granted by the Constitution.
It is possible that if appointed to the Supreme Court, Judge Kavanaugh would
feel less bound by precedent and vote to overturn Roe. It is
more likely, however, that he would instead attempt to narrow the range of
cases where an impediment to woman’s right to an abortion is considered not to
be an “undue burden,” as he did in Garza, effectively
achieving the same result.
In Priests for Life v. HHS, Judge Kavanaugh, in another
dissent, argued that the accommodation offered by the Obama administration for
religious employers who object to covering contraceptives for their employers
was invalid. Unlike other dissenters, however, he acknowledged that the Supreme
Court had held that the government had a compelling interest in ensuring access
to contraceptives. He argued only that the government could have fulfilled that
interest through an approach less restrictive of the rights of religious
organizations.
Finally, in Hall v. Sebelius, Kavanaugh
wrote for the majority of a three-judge panel holding that an individual who is
65 years or older and who receives Social Security cannot decline an
entitlement to Medicare Part A coverage. Former U.S. House of Representatives
majority leader Dick Armey and two other individuals had sought a declaration
that they could refuse the Medicare entitlement because individuals who are
entitled to Medicare cannot purchase comprehensive private health insurance.
Kavanaugh considered the entitlement a result dictated by the statute, and
rejected a dissent from Judge Karen Henderson, who argued that the obligation
was based on HHS guidance that incorrectly interpreted that law.
Judge Kavanaugh’s
Approach to Judging
In none of these cases did Kavanaugh stake out
a strong ideological position, for example, opposing abortion or the ACA.
Indeed, he declined to join other dissenting judges who did so more
forthrightly. In several of the cases he made a point of following existing
precedent and in none would he have radically changed the law.
This is not to say, however, that as a Supreme
Court justice Kavanaugh might not effectuate major changes in law affecting
controversial health policy issues. His opinions clearly distinguish between
the role of the Supreme Court, which establishes precedent, and of the
appellate court, which must follow its lead.
Moreover, in other contexts Judge Kavanaugh has made it clear that he supports a more expansive role for
the courts and a more restricted role for administrative agencies in
interpreting statutes. Justice Kavanaugh may be quite open to challenges to
Obama-era — or Trump-era —administrative regulations for implementing the ACA.
Kavanaugh also has been quite willing in other contexts to challenge major
federal programs on constitutional grounds.
On the other hand, he might be open to
dramatically expanding to power of the executive. In a footnote to Kavanaugh’s
musings on the possible constitutionality of the individual mandate in Seven-Sky he
asserts: “Under the Constitution, the President may decline to enforce a
statute that regulates private individuals when the President deems the statute
unconstitutional, even if a court has held or would hold the statute
constitutional.” This is a striking statement, which could have very serious
consequences if broadly applied. It is consistent with statements
Kavanaugh has made elsewhere supporting a strong presidency.
Finally, a number of Judge Kavanaugh’s decisions turn on
procedural, jurisdictional, or remedial issues. It is often easier to deny rights
to consumers, workers, minorities, or people with lower incomes by denying them
access to the courts rather than by ruling against them on the substance of
their legal claims. The Supreme Court has done so many times in recent years.
Justice Kavanaugh may continue this trend.
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