Several Democratic senators have claimed that Judge Brett M. Kavanaugh’s history shows he would be a danger on the court to the Affordable Care Act. Senate Minority Leader Chuck Schumer said on Aug. 28 on the Senate floor: “Judge Kavanaugh has written opinions skeptical of our health care law, reproductive rights, and even the contraception coverage requirement.”
The criticisms have focused on two dissents Kavanaugh wrote in cases challenging the constitutionality of the individual mandate, and a third dissent in a case challenging the ACA’s contraception coverage accommodations for certain religious organizations. Also, Democrats have repeatedly stressed that a case in District Court in Texas could reach the Supreme Court and affect preexisting condition protections in the health care law. We’ll look at the facts.
THE ACA's CONSTITUTIONALITY
What Democrats are saying: "There’s a Texas case where that’s being challenged right now, that’s moving up, it could likely go before the Supreme Court. Well knowing your record, it is right that these Americans, so many of them with preexisting conditions are asking whether the Supreme Court will be an institution that affirms and protects the rights of people with access to healthcare,” Sen. Cory Booker said during the first day of the confirmation hearings on Sept. 4. “We all know too many people who have set aside prescription drugs because they’re too high, because of what corporations are doing there. People who have put off going to see the doctor because a visit is too expensive, that is in the balance with this nomination.”
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“Judge Kavanaugh, you wrote, for example, in Seven-Sky v. Holder that a president can disregard a law passed by Congress if he deems it to be unconstitutional, even if a court has upheld it,” Sen. Amy Klobuchar said in the Sept. 4 hearing.
Senate Minority Leader Chuck Schumer said in a July 9 tweet: “Judge Kavanaugh’s own writings make clear that … he would welcome challenges to the constitutionality of the Affordable Care Act.”
Also in a July 9 tweet, Sen. Elizabeth Warren described Kavanaugh as being “hostile to health care for millions.”
What Kavanaugh’s record shows: As an appellate judge on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh issued dissents in two cases that challenged the constitutionality of the Affordable Care Act’s individual mandate, which requires most people to have health insurance or pay a penalty on their tax returns. (The Republican tax law signed in December 2017 eliminated the tax penalty, effective for the 2019 tax year.)
Seven-Sky v. Holder, 2011. The appeals court rejected this challenge to the ACA’s individual mandate. Kavanaugh dissented, but his objection concerned the jurisdiction of the court, not the constitutionality of the health care law.
Kavanaugh wrote that the court shouldn’t have heard the case because the Anti-Injunction Act said a tax must be assessed and collected before a suit against it could be decided. (The individual mandate didn’t go into effect until the 2014 tax year.)
He argued that what the law referred to as “penalties” were to be “assessed and collected in the same manner as taxes.” And he said he would “leave these momentous constitutional issues for another day – a day that may never come.”
Kavanaugh dissent, Seven-Sky v. Holder, 2011: Between now and 2015, Congress might keep the mandate as is and the President may enforce it as is. If that happens, the federal courts would resolve the resulting constitutional case by our best lights and would not shy away from a necessary constitutional decision. But history tells us to cross that bridge only if and when we need to. Unlike the majority opinion, I would adhere to the text of the Anti-Injunction Act and leave these momentous constitutional issues for another day – a day that may never come.
There are differing views on what Kavanaugh’s lengthy dissent may say about his stance on the ACA.
The Federalist, a conservative online publication, published opposing takes in early July.
One commentator called it a “roadmap to save Obamacare,” noting that Kavanaugh wrote that “this case could disappear by 2015 because, by then, Congress may fix the alleged constitutional shortcoming and ensure that the Affordable Care Act’s individual mandate provision fits comfortably within Congress’ Taxing Clause power.” In fact, the Supreme Court in 2012 in NFIB v. Sebelius upheld the constitutionality of the individual mandate under the taxing clause.
But on July 3, The Federalist published a second analysis that said the “roadmap” claim was “nonsense.” Justin Walker, a former law clerk for Justice Anthony Kennedy and Kavanaugh, and an assistant professor at the University of Louisville Brandeis School of Law, wrote in that piece that Kavanaugh’s dissent was actually a “roadmap” for the Supreme Court dissenters in the NFIB v. Sebelius case.
Another former clerk for Kavanaugh, Sarah E. Pitlyk, wrote in the National Review that Kavanaugh said in his dissent that the taxing clause “has not traditionally authorized a legal prohibition or mandate.” And while “he ultimately determined that a challenge to Obamacare had to be brought later,” she said, “he left no doubt about where he stood.”
But Timothy S. Jost, an emeritus professor at the Washington and Lee University School of Law and an expert on health care, wrote in a July 16 analysis of Kavanaugh’s record for the Commonwealth Fund that the Supreme Court nominee didn’t show “strong opposition” to the health care law in this case, or the one we’ll examine next.
“After a long discussion of the Tax Anti-Injunction Act in Seven-Sky, Kavanaugh concluded his opinion by musing about the possible invalidity of the mandate under Congress’s commerce power,” Jost wrote. “On the one hand, he entertained arguments that the mandate encroached on state authority and individual rights, but on the other, he suggested that it was a novel approach to providing safety-net services through the private sector. Seeing both sides of the argument, he concluded that the court should avoid a constitutional ruling until the case was properly before it.”
Klobuchar, and other Democrats, have highlighted one line in particular from Kavanaugh’s dissent, where he says: “Or the President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional.” In a footnote, Kavanaugh says: “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”
Klobuchar framed this as an executive power issue, not explicitly a health care issue.
Jost told us in a phone interview that it’s “not unprecedented” for a president to take the position that a law is unconstitutional, but it is “very controversial” to hold that a president can refuse to enforce a statute after a court has upheld its constitutionality.
Our fact-checking colleagues at PolitiFact.com spoke with several legal experts about this issue, finding: “Experts generally agree that a president is not bound by a lower court’s decision when deciding a law is unconstitutional but diverge on whether the Supreme Court has the final say.”
Abbe R. Gluck, a professor of law and the faculty director of the Solomon Center for Health Law and Policy at Yale Law School, told us in an email: “[T]hat is indeed a very controversial position to take, one that embraces what I would say is a dangerously broad view of presidential power, especially in the case where a court has upheld the law in question.” But Kavanaugh’s statement doesn’t reveal much about his views on the ACA, she said, noting that “the footnote was dropped in the very same case in which Judge Kavanaugh actually rejected an early major constitutional challenge to the ACA.”
Sissel v. HHS, 2015. Schumer’s July tweet included a graphic that cited this case, saying: “Judge Kavanaugh argued that the D.C. Circuit Court should consider a claim that the ACA was unconstitutional. His fellow judges described it as a ‘flawed’ ‘misread’ of SCOTUS precedent.”
In Sissel v. HHS, an Iowa artist named Matt Sissel argued that the Affordable Care Act was unconstitutional because it violated the origination clause of Article 1, which says that legislation that raises revenue must originate in the House of Representatives. The three-judge panel for the District of Columbia Circuit ruled against Sissel, and he requested the court reconsider the case en banc, meaning the full court would hear the case.
The appeals court again rejected the claim, saying, “The purpose of the ACA was to overhaul the national healthcare system, not to raise revenue.”
Kavanaugh dissented, joined by three other judges. He said the ACA was indeed “a revenue-raising bill subject to the Origination Clause.” But, he said, the ACA complied with the clause. “Although the original House bill was amended and its language replaced in the Senate, such Senate amendments are permissible under the Clause’s text and precedent,” Kavanaugh wrote.
He said he would grant the en banc hearing — so, Schumer is technically correct that Kavanaugh “argued that the D.C. Circuit Court should consider a claim that the ACA was unconstitutional.” But that ignores the fact that Kavanaugh went on to argue that the court should “rule for the Government on the ground that the Affordable Care Act originated in the House and thereby complied with the Origination Clause.”
The court’s opinion also did say that Kavanaugh’s reading of Supreme Court precedent was “flawed” — but Kavanaugh, along with his fellow dissenters, described the panel opinion as “flawed” as well. The disagreement was over whether the origination clause applied in the case, not whether the ACA was constitutional.
Kavanaugh argued that not ruling on the case would raise constitutional questions about the origination clause and the balance of power between the House and the Senate.
The Harvard Law Review wrote of the case: “Sissel sends a very strong message regarding the constitutionality of the ACA under the Origination Clause. Even the four dissenting judges reached the conclusion that the ACA is constitutional, likely indicating unanimity across the D.C. Circuit.”
The Texas case and preexisting conditions. As we wrote this summer, in their opposition to Kavanaugh’s nomination, Democrats have highlighted a case filed in District Court in Texas, and the Trump administration’s decision to not defend the federal government in that case.
The Texas suit, filed by that state and 19 others, points to the Supreme Court’s 2012 decision that the ACA’s individual mandate to have health insurance was lawful under Congress’ power to tax. Since Congress has now eliminated the tax penalty associated with the individual mandate (starting in tax year 2019), the suit argues, the mandate itself is unconstitutional. Without the mandate, the suit says, “the remainder of the ACA must also fall.”
The Department of Justice has sided with the plaintiffs, but disagrees that the entire health care law must be eliminated. Instead, the DOJ said a finding that the mandate were unconstitutional would mean ACA preexisting condition provisions — provisions guaranteeing that those with medical conditions won’t be denied coverage or charged more based on health status — would have to be eliminated as well.
The case has a long way to go before the Supreme Court would have any potential impact. It would need to make its way through the District Court in Texas, which began hearing oral arguments on Sept. 5, then through an appeals court and then to the Supreme Court.
What Democrats are saying: “And he would not uphold the Affordable Care Act’s contraception mandate,” Sen. Bernie Sanders claimed this summer.
What Kavanaugh’s record shows: Kavanaugh sided with religious organizations in a case challenging the ACA’s requirement that insurance policies include coverage of birth control. There’s some nuance, though, to this dissent as well.
Priests for Life v. HHS, 2015. The plaintiff — a Catholic anti-abortion rights group — challenged the Obama administration’s accommodation to the ACA’s contraception mandate for religious employers. That accommodation, which pertained to nonprofits with religious affiliations and closely-held for-profit companies, said that women working for those groups could get contraception coverage paid for by the insurers, instead of their employers, if the employers notified the insurance companies or the Department of Health and Human Services of their religious objections.
The appeals court rejected the plaintiffs’ request for a rehearing en banc. Kavanaugh dissented, saying he would “rule for the plaintiff religious organizations.” But he also said that the Supreme Court ruling in the 2014 Hobby Lobby case “strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.” However, Kavanaugh said, the accommodation for the religious groups “is not the Government’s least restrictive means of furthering its interest.”
Jost, writing for the Commonwealth Fund, said that Kavanaugh acknowledged this “compelling interest” and “argued only that the government could have fulfilled that interest through an approach less restrictive of the rights of religious organizations.”
In addition to these cases, Jost includes one on abortion and another on Medicare coverage in his full analysis, finding that “[i]n none of these cases did Kavanaugh stake out a strong ideological position, for example, opposing abortion or the ACA. … This is not to say, however, that as a Supreme Court justice Kavanaugh might not effectuate major changes in law affecting controversial health policy issues.”