More Senate Dems: Kavanaugh could be the end of health care as we know it

More precisely, Senate Democrats argue a Brett Kavanaugh confirmation could end health care as they know it — meaning ObamaCare. Opponents of Donald Trump’s nominee to the Supreme Court have added health care to abortion and Robert Mueller as their main lines of attack. In this case, they’re digging up an argument that hasn’t helped them much since ObamaCare’s passage eight years ago:


Senate Democrats, who are divided on abortion policy, are instead turning to health care as a rallying cry for opposition to Brett Kavanaugh, President Trump’s Supreme Court nominee.

Specifically, they are sounding the alarm that confirming the conservative District Court judge could jeopardize one of the Affordable Care Act’s most popular provisions — its protections for people with pre-existing health conditions.

“Democrats believe the No. 1 issue in America is health care, and the ability of people to get good health care at prices they can afford,” said Senate Minority Leader Chuck Schumer, D-N.Y.

The Kavanaugh nomination, he added, “would put a dagger” through the heart of that belief.

Democrats have always believed that “the No. 1 issue in America is health care,” but that belief hasn’t been borne out by elections. They have used versions of this same argument in every election cycle since the March 2010 passage of the ACA and have yet to win a House majority with it. They lost the Senate in 2014 while warning about Republican sabotage of ObamaCare, and they lost everything in 2016 while making this very same pitch. It might work for their base, but it’s not going to raise the masses against Kavanaugh, at least not outside the progressive bubble.

At least this is an actual issue, unlike the silly and obnoxious smear campaign launched by Chuck Schumer to tie Kavanaugh to the Mueller probe. There is at least one lawsuit in the pipeline challenging ObamaCare’s constitutionality again, this time on the basis of the elimination of the mandate and the removal of “tax” status. Legal experts don’t think it will get anywhere near the Supreme Court, and Philip Klein writes that this proves that Democrats are grasping at straws:


A suit brought by 20 states led by Texas and Wisconsin argues that last year’s repeal of the penalties for not purchasing insurance means that Obamacare’s mandate is no longer a constitutional exercise of taxing power and must be invalidated along with the rest of the law. The fact that the Trump administration has not only declined to defend Obamacare, but that it has argued further that pre-existing condition related regulations must be struck down, no doubt provides an opening to Demcrats. But it’s a rather narrow one.

The suit is still in the briefing phase at the district court level, and faces many legal hurdles before it has a chance of getting to the Supreme Court, including establishing standing to sue in the first place. The suit has been met with skepticism from a wide array of legal experts from a range of ideological backrgounds, including libertarian law professor Jonathan Adler, who was one of the intellectual architects of the last significant Obamacare case before the Supreme Court — the unsuccessful textual challenge that argued that insurance subsidies could only go to residents living in states that established their own exchanges.

It is rather telling then, that Democrats would focus so much on this line of attack. The best explanation is that they don’t have much on Kavanaugh, which is saying something.

Either that or they’re playing out a kitchen-sink strategy, which seems to be more the case. The dishonest attack on Kavanaugh’s earlier writings to demand his recusal on Mueller-related cases seems much more desperate than this. With this specific issue, this appears to look a little more like the recusal argument. It was Kavanaugh who opened the door to the tax argument in a dissent that Chief Justice John Roberts seized to uphold ObamaCare:


In a 2011 case, Seven-Sky v. Holder, the appeals court upheld the individual mandate to buy health insurance, a pillar of the Affordable Care Act. Kavanaugh wrote a dissent, saying the mandate was essentially a tax and thus outside the court’s jurisdiction. This argument later became central when the Supreme Court upheld the constitutionality of the ACA.

In fact, Kavanaugh sounded skeptical of the entire challenge to the mandate, sounding very much like he considered it to be an expression of Congress’ power to levy taxes — the same argument on which Roberts relied:

To be sure, the Affordable Care Act labels its exaction for failure to have health insurance as a tax “penalty” and not as a “tax.” But the Anti-Injunction Act still applies. That’s because the Affordable Care Act requires that the tax penalty for failure to maintain health insurance “be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68” of the Tax Code. 26 U.S.C. § 5000A(g)(1). And penalties under subchapter B of chapter 68 in turn must “be assessed and collected in the same manner as taxes.” 26 U.S.C. § 6671(a) (emphasis added). It follows from those two provisions, taken together, that these Affordable Care Act penalties must be assessed and collected “in the same manner as taxes.” …

Section 6201 of the Tax Code defines the IRS’s authority for assessment and collection of taxes to include assessment and collection of the civil penalties in the Tax Code that are assessed by the IRS – what are statutorily known as “additional amounts,” “additions to the tax,” and “assessable penalties.” Section 6201 specifically requires the IRS to assess “all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title.” 26 U.S.C. § 6201(a); see 26 U.S.C. §§ 6301-6303 (collection). The Affordable Care Act imposes a civil “penalty” for failure to have health insurance; the penalty is to be “assessed” by the IRS; and it is to be assessed “in the same manner as an assessable penalty under subchapter B of chapter 68.” The Affordable Care Act penalty is therefore an “assessable penalty” for purposes of Section 6201. Under Section 6201, it is also, then, a tax for purposes of the IRS’s assessment authority.


In his dissent, Kavanaugh bent over backwards to give the Obama administration the benefit of the doubt on the Anti-Injunction Act, even though they hadn’t actually argued it, in order to wave off any court intervention. Given that and the extent to which Roberts relied on this dissent to reach the majority decision upholding ObamaCare, how likely would Kavanaugh be to overturn it now? Especially with the mandate and penalties stripped from it? The tax is gone, certainly, but with it the extraconstitutional issues that drove the original lawsuit.

Republicans should be more worried about Kavanaugh on this particular point than Democrats. But not much more worried, because it’s a moot issue now, whether or not Kavanaugh comes to the Supreme Court. They killed the mandate in the tax reform bill, and it’s not coming back, because even Democrats hated that provision.

The real challenge to ObamaCare has been and remains at the ballot box, not in the courts. That’s the one that Democrats keep losing, and raising its profile by making it part of the Kavanaugh confirmation could very well amplify its impact — especially in red states where Senate Democrats already look at risk of failing. The number one issue at the ballot box in those states could end up being Democratic obstructionism.

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