Politics

Dems Suffer Odd Paranoia About Kavanaugh and Obamacare

Nominee's testimony and prior rulings give no indication that he'd toss law; and, if confirmed, he's not even the deciding vote

Senators considering Judge Brett Kavanaugh’s nomination to the Supreme Court and numerous demonstrators inside the hearing room have depicted him as a threat to Obamacare.

A protester — who staged one of more than 200 outbursts that have disrupted this week’s proceedings — even shouted Thursday, “Stop killing our kids!”

Last week, before the hearing even started, Senate Minority Leader Chuck Schumer (D-N.Y.) flatly declared on Twitter that Kavanaugh “would welcome challenges to the Affordable Care Act.”

Experts said the hyperfocus on Obamacare is odd for two reasons. First, there is scant evidence in Kavanaugh’s record as a judge on the U.S. Circuit Court of Appeals for the District of Columbia that points to how he might rule one way or the other on a challenge to the Affordable Care Act. And two, Kavanaugh would not even wield the deciding vote as the high court is currently constituted.

“That’s Roberts,” said Josh Blackman, an expert in law and health at South Texas College of Law Houston.

Blackman was referring to Chief Justice John Roberts, who has sided with the court’s four liberal-leaning justices to uphold the Affordable Care Act. If confirmed, Kavanaugh would succeed retired Justice Anthony Kennedy, who voted with the other three Republican-appointed justices to strike down the law.

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If Kavanaugh were inclined to strike down the law, swapping him for Kennedy preserves the same 5-4 divide that previously protected Obamacare.

While Democrats have seized on a pair of dissenting opinions that Kavanaugh has written in Obamacare cases as evidence of perceived hostility toward the law, both opinions addressed technical issues that have nothing to do with the merits, constitutional or otherwise, of the law.

Blackman, author of “Unprecedented: The Constitutional Challenge to Obamacare,” said the rulings simply offer too few clues for how he might come down on the ultimate question.

“The Democrats haven’t pointed to any basis in his record,” he told LifeZette.

For his part, Kavanaugh has been careful this week not to tip his hand on how he would react to future challenges to Obamacare.

“In one case, I upheld the Affordable Care Act against an origination clause challenge,” he said Thursday in response to questions from Sen. Kamala Harris (D-Calif.). “In the case you’re referring to, I did not reach the merits. But I discussed the merits … that were being argued in both directions. My opinion has been described as a roadmap for both sides, because I described both positions.”

The two dissents Kavanaugh wrote are:

  • Seven-Sky v. Holder, a 2011 challenge based on the Affordable Care Act’s requirement that people buy insurance. Kavanaugh dissented from the majority opinion rejecting the challenge, arguing that the court lacked jurisdiction to hear the case.
  • Sissel v. the Department of Health and Human Services (HHS). That challenge attacked Obamacare on grounds that the legislation failed to originate in the House of Representatives, as bills that raise revenue must do under the Constitution. The majority rejected the argument and upheld the law. Kavanaugh and three other judges dissented, arguing that Obamacare was a “revenue-raising bill.” But the dissenting opinion maintained that it should survive a constitutional challenge, anyway, because it complied with rules of origination.

Democrats have criticized Kavanaugh for dissenting in the Seven-Sky case, characterizing it as an attack on Obamacare.

“That is the most disingenuous way to describe Seven-Sky,” Blackman said.

While “technically that’s true,” he added, it falsely suggests Kavanaugh opposed upholding the law.

In fact, Kavanaugh’s 33-page dissent argues that the court, under the Anti-Injunction Act, should wait until the IRS enforced the penalty on the individual mandate before deciding the law’s constitutionality. What’s more, Kavanaugh also insinuated in the opinion that the law may well be constitutional under the legislative branch’s taxing power.

“I understand the real-world impacts of the Affordable Care Act. I’ve made that clear in my decisions.”

That is similar to the rationale Roberts citied in his majority opinion upholding the Affordable Care Act.

Sen. Richard Blumenthal (D-Conn.) suggested during questioning that Kavanaugh might allow a frontal assault on Obamacare, not through a legal challenge but by simply allowing President Donald Trump unilaterally to declare the law unconstitutional.

“My reading of your view of the constitutional authority of Donald Trump is that he could simply deem the Affordable Care Act unconstitutional — even if it is upheld by the D.C. Circuit Court of Appeals and then by the United States Supreme Court,” he said.

Related: Liberals Melt Down as Kavanaugh Calls Birth Control Pills ‘Abortion-Inducing Drugs’

Blumenthal referenced an eight-year-old boy named Connor Curran, who suffers from a degenerative disease called Duchenne muscular dystrophy.

“I just want to express to you my fear and my deep concern that you will not apply the law to the facts but use the law to advance an ideological position that may affect the people of America like Connor,” he said.

Kavanaugh said in both of the dissents, “I expressed my respect for the congressional goal in that legislation, in ensuring health insurance for uninsured Americans and providing for affordable health care for all Americans.”

Added the nominee: “I understand the real-world impacts of the Affordable Care Act. I’ve made that clear in my decisions.”

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