Associated
Press July 17, 2018
BOSTON (AP) — 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 pre-existing
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.
"There is probably nothing more vital to the American
people that's at stake in the Supreme Court than the ability to protect
families who have members with pre-existing conditions," said Senate
Minority Leader Chuck Schumer of New York.
"Obamacare" has been a winning issue for
Republicans, but polls indicate public opinion may be shifting. About half of
Americans now hold a favorable view of the law, compared with 41 percent who
disapprove, according to a recent Kaiser Family Foundation survey.
Liberals point to a 2015 Trump tweet in assuming Kavanaugh
would live up to the then-candidate's pledge that his judicial appointees
"will do the right thing unlike Bush's appointee John Roberts on
Obamacare."
They're raising alarm about Kavanaugh's suggestion in his
2011 dissent that the president can decline to enforce a law that regulates
private individuals if the president finds it unconstitutional, even if a court
has or would uphold it.
"Of all the choices the President had for this
position, he chose the one person who has indicated on the record that he
believes the President is above the law," Democratic Sen. Debbie Stabenow
of Michigan said in a statement.
Kavanaugh's opponents also point to a 2015 opinion
disagreeing with the appeals court's ruling in the case of a religious-liberty
challenge to the overhaul's contraceptive coverage mandate. That provision
requires most employers to provide health insurance for their employees.
Religious groups challenged a requirement that they submit
a form so the insurer could continue contraceptive coverage for their employees
with separate funds provided by the insurer or the government. Kavanaugh agreed
that the mandate infringed on the rights of the religious organizations.
In a Heritage Foundation lecture last year, Kavanaugh
stopped short of saying whether he believed the 2012 Supreme Court ruling
upholding the health care law was wrong. But he voiced frustration with the way
Roberts arrived at his vote by following the judicial principle of avoiding
ruling on constitutionality because of ambiguity, "not on the proper
interpretation of the Constitution" or the best interpretation of the
statute.
"In my view, this is a very odd state of
affairs," Kavanaugh said.
Sewell reported
from Cincinnati. Associated Press writers Mark Sherman and Ricardo
Alonso-Zaldivar in Washington contributed.
Follow Alanna
Durkin Richer at http://twitter.com/aedurkinricher and
read more of her work at http://bit.ly/2hIhzDb. Follow Dan Sewell
at http://www.twitter.com/dansewell and
see more of his work at https://apnews.com/search/dan%20sewell
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