President Donald Trump’s recent nomination of Brett Kavanaugh to succeed retiring Supreme Court Justice Anthony Kennedy is controversial.
Kavanaugh is a former Kennedy law clerk and a longstanding member of the influential District of Columbia federal appellate court. He is also a darling of the Beltway’s right-leaning policy brokers, who describe him as “boldly conservative.” His views on controversial health care topics ranging from health care reform to reproductive rights, however, have generated criticism from both liberal and conservative commentators.
Critiques of Kavanaugh’s health care reform positions largely center around a 2011 dissent in a case that considered the constitutionality of the Affordable Care Act’s individual mandate. A majority of his court upheld the individual mandate, which penalized taxpayers for refusing to purchase health care insurance. Claiming the mantle of judicial restraint, Kavanaugh dissented because the taxpayer challenge to the ACA was premature. He observed that the ACA became law “after a high-profile and vigorous national debate” and “courts must afford great respect to that legislative effort and should be wary of upending it.”
Liberal critics have seized on Kavanaugh’s dissent as evidence he is hostile to the ACA and would likely vote to strike it down as a Supreme Court justice. Some conservatives, on the other hand, claim Kavanaugh’s dissent characterizing the individual mandate as a “tax” provided the blueprint for the later Supreme Court decision holding the individual penalty constitutional. Judge Kavanaugh’s dissent, however, is not a reliable bellwether for predicting his vote on future challenges to the ACA, because his opinion was based on narrow grounds that did not consider the law’s constitutionality.
Congress has since repealed the individual mandate, triggering yet another attack on “Obamacare.” In a closely-watched case pending in a Texas federal court, Republican state attorneys general seek to invalidate the entire ACA, including its pre-existing conditions protections, as a result of Congress’s repeal of the individual mandate. The case has garnered much attention due to the popularity of the ACA’s pre-existing conditions protections, as well as the federal Department of Justice’s refusal to defend the ACA. Approximately 130 million non-elderly people nationwide who suffer pre-existing conditions stand to lose their ACA protections should the court strike down the law.
In the wake of Kavanaugh’s high court nomination, scholars and pundits are speculating about how the nominee would rule in the Texas case. Regardless of how that case is resolved, ACA proponents are wise to be concerned about the future of health care reform in the hands of a high court that includes Brett Kavanaugh.
First, it is unclear how Kavanaugh would rule on Medicaid eligibility limitations that certain states have announced. A federal court recently invalidated Kentucky’s Medicaid work requirements in a case possibly destined for Supreme Court review. Some legal experts argue that Kavanaugh might be inclined to reverse that decision, thereby stripping 400,000 Kentuckians of their Medicaid coverage — based on the legal theory that poor people lack standing to sue the government under the Medicaid statute.
In West Virginia, where over half-a-million people receive Medicaid, a legal ruling blocking access to the courts could literally cost lives.
Second, Kavanaugh’s view that federal agencies have limited authority to issue regulations is another area of concern for ACA supporters. The ACA, for example, bans discrimination in health care based on race, color, national origin, sex, age or disability. In May 2016, the U.S. Department of Health and Human Services promulgated a regulation interpreting the ACA’s prohibition on “sex” discrimination to include transgender individuals and persons seeking reproductive care.
In December 2016, however, a federal district court issued an injunction blocking the regulation’s anti-discrimination protections applicable to gender identity and termination of pregnancy. The court interpreted the word “sex” in the ACA’s anti-discrimination provision to exclude transgender individuals and women seeking pregnancy-related treatment. Kavanaugh’s restrictive views on agency rulemaking authority suggest he would affirm that ruling and interpret the ACA’s anti-discrimination protections narrowly.
In a recent decision, Kavanaugh ruled unconstitutional the ACA’s contraception coverage mandate asserting it violates an employer’s right to religious liberty, thus providing additional insight regarding his positions on health care reform and reproductive rights.
Finally, Kavanaugh’s tendency to defer to presidential authority does not bode well for the future viability of the ACA. On several occasions, the Trump administration has chipped away at core ACA provisions by invoking its muscular executive branch powers, including issuance of executive orders and administrative rules. Kavanaugh, however, might be inclined to uphold these ACA-gutting administrative actions given his expansive interpretation of the scope of presidential powers under Article II of the Constitution.
In sum, ACA supporters should be worried the Senate might confirm Judge Kavanaugh’s nomination to the Supreme Court. Those who live in Medicaid expansion states, including West Virginia and Kentucky, should be particularly alarmed about that possibility. The future of health care reform hangs in the balance.