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July 17th, 2018

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Kavanaugh may not completely gut ObamaCare if he makes it to the Supreme Court

Colby Itkowitz

By Colby Itkowitz The Washington Post

Published July 12,2018

Kavanaugh may not completely gut ObamaCare if he makes it to the Supreme Court
The future of the Affordable Care Act with a Justice Brett Kavanaugh on the Supreme Court doesn't necessarily mean a vote to end the GOP's perpetual punching bag.


Democrats fear a rightward turn of the court would solidify the ACA's spot, in addition to Roe v. Wade, on the endangered list. And since past Republican efforts to dismantle the health-care law only made it more popular with voters, Democrats are eager to cast Kavanaugh (as they would have with any Trump pick to the high court) as a threat to its existence.


But even legal experts who support the ACA aren't convinced that Kavanaugh will take the hard-line approach to Obamacare that conservatives long to see.


Nicholas Bagley, a defender of Obamacare and a professor at the University of Michigan Law School, told me it was his belief that Kavanaugh won't see ACA-related lawsuits as "health-care cases," but rather he'll "view them through the constitutional lens he brings to his cases more generally."


As a judge on the D.C. Circuit Court of Appeals, Kavanaugh issued the dissenting opinion in a 2011 case finding the ACA constitutional. But Kavanaugh never actually weighed in on the constitutionality of the law, instead arguing the court had no right to take up the case in the first place because of an 1867 law known as the "Anti-Injunction Act." Kavanaugh considered the ACA's individual mandate penalty - the fine people pay if they don't buy insurance coverage - a tax, meaning under the centuries-old law, people couldn't legally challenge the statute until after their taxes were paid. (The individual mandate taxes didn't kick in until 2015.)


But in that dissent, Kavanaugh wrote the court should hear the case in the future, and when it did should consider the constitutionality of the law's regulations under the Constitution's "Commerce Clause." He warned that "to uphold the Affordable Care Act's mandatory-purchase requirement under the Commerce Clause, we would have to uphold a law that is unprecedented on the federal level in American history. That fact alone counsels the Judiciary to exercise great caution."


He also suggested "the Government could impose imprisonment or other criminal punishment on citizens who do not have health insurance," adding: "That is a rather jarring prospect."


Those opinions on Obamacare were enough to make Democrats balk. Sen. Chris Murphy, D-Conn., on the Senate floor Tuesday to talk about Kavanaugh's nomination, said: "The fact that Judge Kavanaugh went out of his way to talk about his fears as to how broad the Affordable Care Act may be in addition to . . . Trump's very clear signaling that he is only going to appoint a judge who was willing to overturn the Affordable Care Act tells you that if you have any of these [preexisting] conditions, you are in the crossfire right now."


But Mark Hall, director of the Health Law and Policy Program at Wake Forest University's School of Law, told me that while Kavanaugh's dissent is "notable," it is not predictive of how the judge would vote in future cases involving the ACA.


"It's not some bombastic opinion," he said. "There were some of those coming up that you could read into it that the judge did not like the law. Kavanaugh's is a very neutral position in regards to the merits of the law."


The most likely ACA-related case that could come before the highest court next year is a suit filed in February by 20 red states in a Texas federal court that contends that without the individual mandate, the entire ACA is invalid. The GOP tax bill that passed at the end of last year repealed the financial penalty in Obamacare levied on Americans who didn't buy health insurance.


If that case made its way up to the Supreme Court, Abbe Gluck, a Yale law professor who supports the ACA, is hopeful that Kavanaugh would dismiss the Texas suit as "frivolous" when considering its "severability" merits, a legal doctrine that says even if one part of a law is found invalid, the rest should still stand.


The Republican states would argue the individual mandate is so intrinsically intertwined with the rest of the law that you can't have one without the other. But Gluck says that's a "perversion of severability" because there's no evidence that Congress intended for the rest of the ACA to fall with the elimination of the tax penalty. Congress expressly left the other regulations in the law standing when it repealed the penalty, she pointed out. And she believes Kavanaugh will see it that way too.


"Judge Kavanaugh is an expert in statutory interpretation," Gluck told me. "He has written that courts should only excise the smallest possible part of the statue, and that is the opposite position Texas is taking."


Gluck said that based on what she knows of Kavanaugh's past legal opinions, it would be difficult to imagine him siding with Texas on the ACA case.


Kavanaugh, at least in his public writings, is disdainful of an activist court. Writing in the Harvard Law Review in 2016, he said: "The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges."

While most legal observers agree that it's unlikely the ACA as a whole is at risk with Kavanaugh on the court - at least not anymore than it would have been if Justice Anthony M. Kennedy were staying - Gluck said Democrats have good reason to be concerned about other potential health care-related cases where Kavanaugh's stances are clear.


Gluck predicts there will be cases that accuse the Trump administration of sabotaging the ACA, which she says violates the Article II of the Constitution or the "Take Care Clause, " which requires the president to act in good faith to enforce laws. Kavanaugh is on record as being a supporter of broad presidential powers, so one could surmise that he'd find reasons for the actions Trump has taken to weaken the ACA via regulations.


Also likely to make its way through the courts is the question of whether states have the right to put restrictions on Medicaid eligibility. A federal judge recently ruled that Kentucky could not place work requirements on Medicaid recipients despite getting permission from the Trump administration to do so. Kavanaugh does not have a clear record on such issues because the D.C. Circuit, where he has spent his entire judicial career, tends to take on federal statutory cases rather than questions of state rights.


"It's a very complicated nomination," Gluck said. "There are aspects that aren't as concerning for health care as they might be. When it comes to the Texas case, I'm not particularly concerned. But I think there are other health care cases that even those of us who admire Judge Kavanaugh will have questions about."

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