Federal Courts and Nominations

Kavanaugh nomination raises questions about ObamaCare’s fate

One of Democrats’ central messages in fighting Supreme Court nominee Brett Kavanaugh is that he would help overturn ObamaCare’s protections for people with pre-existing conditions.

But legal experts at both ends of the political spectrum say the chances of a court challenge to ObamaCare succeeding are very small, and that the latest lawsuit challenging the 2010 Affordable Care Act (ACA) is far-fetched.

Democrats, sensing that protecting pre-existing condition provisions is a winning political issue, are sounding the alarm over a legal challenge from Texas and 19 other GOP-led states. That lawsuit, however, has been panned by a wide array of legal experts who say it makes an unorthodox argument that has little chance of succeeding.

Ilya Somin, a libertarian law professor at George Mason University, said the February lawsuit is “sufficiently outlandish that it’s highly unlikely to prevail.”

Chris Walker, an Ohio State law professor and former law clerk for Justice Anthony Kennedy, predicted that the case would garner little support from Supreme Court justices.

“I doubt there are more than a couple votes on the court” against ObamaCare in the latest case, he said.

Nevertheless, Democrats warn that nothing is certain, and they point to remarks President Trump made on the campaign trail in 2015 about how he would want his judicial appointees to overturn ObamaCare.

“We Democrats believe the number one issue in America is health care, and the ability for people to get good health care at prices they can afford,” Senate Minority Leader Chuck Schumer (N.Y.) said Tuesday. “The nomination of Mr. Kavanaugh would put a dagger through the heart of that cherished belief that most Americans have.”

Brianne Gorod, chief counsel at the liberal Constitutional Accountability Center, said defenders of the ACA can never be too careful.

She noted that there were arguments in the 2012 ObamaCare case “that everyone thought were off the wall” until four Supreme Court justices ended up voting for them.

That case centered on whether Congress had the power to mandate people have health insurance. Many liberal experts initially dismissed conservative arguments that Congress had exceeded its traditional power to regulate commerce, but those arguments ended up getting the votes of Justices Samuel Alito Jr., Anthony Kennedy, Antonin Scalia and Clarence Thomas.

The newest lawsuit also focuses on the law’s mandate to have coverage. But now that Congress effectively repealed the mandate by eliminating the financial penalty for violating it, the lawsuit’s argument against the mandate is an attempt to invalidate the entire law.

The mandate is unconstitutional, the lawsuit alleges, and therefore the rest of the law should be struck down.

Experts on both sides say that line of thinking falls short because it flies in the face of Supreme Court precedent, which looks to the intent of Congress when deciding what components of a statute should remain after a provision is struck down.

The rest of the law would almost certainly remain intact even if the mandate were struck down, experts say, since Congress repealed the penalty for violating the mandate last year while leaving the rest of the law in place.

Abbe Gluck, a Yale Law School professor who supports the ACA, said Kavanaugh is “smart enough to see that the Texas challenge rests on a completely ridiculous” argument.

“I would be shocked if he would jettison decades of settled law to rule for Texas in this case,” she added.

Even if Kavanaugh were to vote to overturn ObamaCare, the four liberal justices and Roberts, who twice has voted to uphold the health law, could provide the votes to save it.

“John Roberts showed now in two opinions that he’s very reluctant to do anything that will collapse the ACA,” said Somin, the George Mason University law professor who supported previous lawsuits against ObamaCare.

Democrats, however, say it is dangerous to continue to count on the chief justice.

“Roberts hung his hat on the mandate,” Schumer told reporters Wednesday. “Now that the mandate has changed, I wouldn’t count on Roberts, and nor should the American people.”

Sen. Susan Collins (R-Maine), who voted against the Republican effort to repeal ObamaCare in 2017, said her Democratic counterparts are focusing on ObamaCare because it is better political ground than abortion and Roe v. Wade.

Collins, who Democrats are hoping they can persuade to vote against Kavanaugh, has said she disagreed with the Trump administration’s unusual decision not to defend ObamaCare in court against the Texas lawsuit.

Democrats say the administration’s outspoken position against the law puts it more at risk in the courtroom.

But even past champions of lawsuits against ObamaCare say the law appears safe, regardless of Kavanaugh.

“This nomination does not really change the outlook for the ACA,” said Jonathan Adler, a law professor at Case Western Reserve University who was an architect of a previous court challenge to the health law.

“There were five votes in support of the law in [2012], and there are still at least five votes today,” he said.

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