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.