GOP can't wait for Trump's Supreme Court nominee to gut Obamacare


Brett Kavanaugh could help dismantle affordable health care for all Americans if he is confirmed to the Supreme Court. Republicans know it — and they're giddy with anticipation.

Trump's Supreme Court nominee, Brett Kavanaugh, is an extremist. Data-driven research shows that he is radically conservative and unusually politically biased for a judge. Americans have every reason to believe that Kavanaugh will work to advance Republican policy priorities from the bench if he is confirmed.

And the damage he could do isn't limited to gutting major civil rights gains like Roe v. Wade or marriage equality. He could also help dismantle affordable health care as we know it for all Americans.

Republicans know it — and they are already giddy with anticipation.

Washington Post reporter Sean Sullivan asked Sen. Orrin Hatch (R-UT) on Wednesday whether Kavanaugh could be a threat to the Affordable Care Act, also known as Obamacare.

Hatch's reply made clear that he thinks so.

"The Affordable Care Act is one of the [most] broad, inclusive bills you'll ever see," Hatch told Sullivan. "And anybody who thinks it's not going to be litigated sometime in the future is nuts."

Given Hatch's repeated, enthusiastic votes to repeal Obamacare, there's little doubt that he would relish the possibility of the Supreme Court revisiting the law and finding new ways to tear it apart.

Conservative commentators and legal analysts are also salivating over the likelihood that Kavanaugh might finally help destroy Obamacare in its entirety — or at least gut it so badly that it might as well have been repealed.

The court has already ruled twice on Obamacare, and has upheld the law both times — but the first of those rulings in 2012 also devastated efforts to help low-income people get health insurance. Six years later, red states are still denying affordable health care to 2.2 million Americans because the Supreme Court made Medicaid expansion optional for individual states.

Kavanaugh has already weighed in on Obamacare, and he was not at all favorable to the law. In 2011, as a D.C. Circuit appeals judge, he dissented from a ruling that upheld the Affordable Care Act.

Kavanaugh's dissent was based on narrow, technical grounds, not the broader merits of the law — but he also had plenty to say about the merits that suggested he would have been more than willing to rule Obamacare unconstitutional.

Law professor Justin Walker, who clerked for both Kavanaugh and Supreme Court Justice Anthony Kennedy, argued that Kavanaugh's analysis was profoundly influential on the three conservative Supreme Court justices who ruled against Obamacare in 2012.

"I am very familiar with that [Supreme Court] opinion, because I served as Kennedy’s law clerk that term," Walker wrote. "I can tell you with certainty that the only justices following a roadmap from Brett Kavanaugh were the ones who said Obamacare was unconstitutional."

Some legal analysts argue that even if Kavanaugh is appointed, he's unlikely to help the court overturn Obamacare completely. Even if Kavanaugh does rule against it, they say, Chief Justice John Roberts has already ruled to (more or less) uphold the law twice, so he probably won't kill it now.

But with his decision on Medicaid expansion, Roberts has already shown that he's comfortable with seriously undermining Obamacare.

And even if the Supreme Court doesn't overturn the entire law, it can effectively kill it, and throw American health insurance markets into chaos, by chipping away at it using any number of obscure back-door methods.

Right now, for instance, 20 states are suing to try to invalidate one of Obamacare's most important, and most popular, provisions: the guarantee that no matter what pre-existing health conditions a person has, from acne to pregnancy to cancer, he or she cannot be denied health coverage or get charged a discriminatorily high rate by insurers.

These protections are so popular with Americans, many Republicans are willing to lie and say they will remain intact if the GOP achieves its dream of repealing the Affordable Care Act.

It's an open question whether this case will actually make it to the Supreme Court. But if it doesn't, another surely will — especially once conservatives know that they have another staunch ally on the court.

And Brett Kavanaugh is one of the safest bests to destroy affordable health care that right-wingers could hope for.

Published with permission of The American Independent Foundation.