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Democrats Overstate Kavanaugh’s Writings on the Affordable Care Act

As they try to block his nomination to the Supreme Court, Senate Democrats have exaggerated Judge Brett M. Kavanaugh’s hostility to the Affordable Care Act in his public statements and writings.

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Linda Qiu
, New York Times

As they try to block his nomination to the Supreme Court, Senate Democrats have exaggerated Judge Brett M. Kavanaugh’s hostility to the Affordable Care Act in his public statements and writings.


“One is that he’s hostile to health care, to the Affordable Care Act. We know this because of the opinions he’s already issued, both dissenting, wanting to roll back the Affordable Care Act.”

— Sen. Elizabeth Warren, D-Mass., in a radio interview Tuesday

“Judge Kavanaugh has argued that the Supreme Court should question the constitutionality of the Affordable Care Act. He openly criticized the Supreme Court when they upheld the law.”

— Sen. Chuck Schumer, D-N.Y., in remarks on the Senate floor Tuesday

“Judge Kavanaugh openly criticized Justice Roberts for saving the Affordable Care Act. And he suggested the D.C. Circuit Court should consider a claim that the law was unconstitutional, using an argument his colleagues on the bench labeled a flawed misread of precedent.”

— Sen. Patty Murray, D-Wash., in a news conference Wednesday
This is exaggerated.

Kavanaugh has written two dissenting opinions in the legal challenges to the Affordable Care Act while serving on the U.S. Court of Appeals for the District of Columbia Circuit.

In both cases, he refrained from making broad pronouncements about the constitutionality of the Affordable Care Act, said Wendy Parmet, a professor of health law at Northeastern University.

She characterized one dissent as “very boring, technical, very arcane” and the other as “very technical, lawyerly and boring.”

Nicholas Bagley, a professor of health law and administrative law at the University of Michigan, disagreed with the Democrats’ framing of Kavanaugh’s writings. He said Kavanaugh “doesn’t think of these cases as Affordable Care Act cases” but instead focused on specific legal issues.

Seven-Sky v. Holder

In 2011, Judge Kavanaugh’s appeals court upheld the Affordable Care Act’s individual mandate that compelled most Americans who do not have health insurance to pay a penalty. (The tax law signed by President Donald Trump in December repealed the mandate, effective in 2019.)

In his dissent, Kavanaugh argued that the court should not have heard the case in the first place, since the Anti-Injunction Act of 1867 forbids judges to rule on tax cases until the tax has been collected. The individual health care mandate did not take effect until 2014 so, he wrote, plaintiffs sued prematurely and “the Anti-Injunction Act precludes us from deciding this case at this time.”

He used a few hypothetical situations to address the plaintiffs’ argument that the individual mandate exceeds congressional authority. But he did not say whether he agreed with that argument, leaving room for interpretation.

“I do not take a position here on whether the statute as currently written is justifiable under the Taxing Clause or the Commerce Clause,” Kavanaugh wrote. “What I am saying is that the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight.”

He wrote that Congress could “easily” address any “potential” or “alleged” constitutional problem by either amending the law’s language or scrapping it. Or, he wrote, the president could choose not to enforce the mandate.

A spokesman for Schumer argued that such comments by the judge served to question the constitutionality of the health law. Yet even some conservative commentators have contended that Kavanaugh’s dissent helped pave the path to upholding the health law or gave Congress “instructions on how to ensure” its constitutionality.

Sissel v. Department of Health and Human Services

In 2015, taxpayers challenged the Affordable Care Act on grounds that it violated the Constitution because revenue-raising bills must originate from the House of Representatives under the Origination Clause.

The appeals court rejected the challenge, ruling that the clause did not apply because the law’s primary purpose was to expand health care, not to raise revenue. Kavanaugh again wrote the dissenting opinion, which argued that although the health law is a revenue-raising bill, it “did in fact originate in the House, as required by the clause.”

The appeals judges who wrote the majority opinion did call Kavanaugh’s reasoning “flawed,” as Murray said. But their disagreement was not over the constitutionality of the Affordable Care Act, but rather interpretations of the Origination Clause.

“The court there was divided over a very technical question,” Bagley said. He noted that Kavanaugh’s dissent showed “less antipathy toward the ACA but reflects a different approach to constitutional review and perhaps a more skeptical view toward the exercise of legislative power.”

Comments on National Federation of Independent Business v. Sebelius

Additionally, aides to Schumer and Murray said an October speech Kavanaugh delivered at the conservative Heritage Foundation also showed hostility toward the Affordable Care Act.

But those comments, too, are open to interpretation.

In the speech, Kavanaugh noted that the Supreme Court case that upheld the health law, National Federation of Independent Business v. Sebelius, was settled through the principle of “constitutional avoidance,” in which courts avoid ruling on constitutional issues if the case can be resolved based on nonconstitutional issues.

Below is a key passage from his speech:

“For all that has been written about the NFIB case, the decision on the individual mandate turned not on the proper interpretation of the Constitution and not on the best interpretation of the statute. It turned entirely on how much room judges have to find ambiguity when invoking the constitutional avoidance canon. In my view, this is a very odd state of affairs. A case of extraordinary magnitude boils down to whether a key provision is clear or ambiguous, even though we have no real idea how much ambiguity is enough to begin with, nor how to ascertain what level of ambiguity exists in a particular statute.”

Bagley said he believed Kavanaugh was “making, frankly, an academic point” about how Chief Justice John G. Roberts Jr.'s frequent application of constitutional avoidance should be used more sparingly.

Both Bagley and Parmet said Democrats have legitimate reasons to be concerned that, if confirmed to the Supreme Court, Kavanaugh would side with Trump administration efforts to water down the Affordable Care Act — particularly in cases about the contraception mandate, short-term health plans or payments to health insurers.

But the two professors said Kavanaugh’s writings on the health law are more restrained than Democrats claim.

“Looking at his work as a whole, there are reasons for the Democrats to be concerned,” Parmet said, “but some of their specific points might be overstated.”

Sources: Seven-Sky v. Holder, The Federalist, Reason, Sissel v. Department of Health and Human Services, Congressional Research Service, C-SPAN, Wendy Parmet, Nicholas Bagley, representatives of Sens. Chuck Schumer and Patty Murray, The New York Times

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