People For the American Way

The Ludicrous Lawsuit Brett Kavanaugh Could Use to Help Destroy the ACA

News and Analysis
The Ludicrous Lawsuit Brett Kavanaugh Could Use to Help Destroy the ACA

President Trump has made clear that he won’t nominate anyone to the Supreme Court unless they pass certain litmus tests regarding Roe v. Wade, Trump’s own authority as president, and healthcare. Now that Trump has nominated Brett Kavanaugh, Republicans in the White House and Senate are working to place him in a position to help destroy the Affordable Care Act.

Opponents of Obamacare have ginned up a meritless lawsuit to be the vehicle: Texas v. United States asserts that because the GOP-controlled Congress eliminated the individual mandate in its 2017 tax “reform” law, two literally life-saving ACA provisions have been made unconstitutional: (1) the prohibition against refusing to insure someone because of preexisting conditions (the “guaranteed issue” provision) and (2) the prohibition against charging higher premiums because of someone’s medical history or current condition (the “community rating” provision).

In June, the Justice Department submitted a brief informing the district court that it agreed with Texas. Here is their twisted chain of reasoning:

  • The Supreme Court found that Congress had the authority to impose the financial penalty under the Constitution’s Taxing and Spending Clause, but not under the Interstate Commerce Clause.
  • In 2017, Congress reduced the tax to zero, thereby eliminating any revenue-raising purpose for the mandate.
  • According to Republicans, even though there is no longer any penalty or legal consequence whatsoever for not buying health insurance, the law still requires people to buy insurance.
  • But without a revenue-raising purpose, Congress constitutionally cannot require people to buy health insurance.
  • So the consumer protections that the mandate had been intended to help pay for are also unconstitutional.

According to their logic, because people cannot be required to have health insurance or be taxed for not doing so, Congress no longer has the constitutional authority to prohibit insurance companies’ business strategies based on letting people get sick and die without coverage.

But that’s only part of the “legal” argument this lawsuit makes. The other part is even more galling: When Congress eliminated the tax for not purchasing health insurance but left untouched the ACA’s guaranteed issue and community rating provisions, what Congress really intended was to eliminate both provisions.

This has to do with a legal concept called severability (and not just because the argument is totally severed from logic). When the Supreme Court considered the constitutionality of the mandate in 2012, one question was whether the entire law would have to be struck down as a whole if that one part of it—the mandate—was found to be unconstitutional. Obviously, this turned out not to be relevant, since the Court upheld the mandate. But courts frequently address whether striking down one part of a law requires the rest of it to be struck down, and they do so based on what the judges believe the intent of Congress was: Would Congress have passed the rest of this law had this one part not been part of it?

Sometimes a statute will explicitly say whether a provision is severable, but other times it’s just a guessing game trying to figure out what Congress would have intended.

Fortunately, this is a ridiculously simple one: Congress eliminated the mandate without touching the other parts of the ACA. Had Congress intended to repeal the other parts of the ACA, it would have repealed them.

Yet the lawsuit argues exactly the opposite: Congress left standing the provisions protecting people with pre-existing conditions, but a court should interpret that as meaning that Congress really intended to get rid of them.

The brief submitted by the Justice Department is so poorly reasoned, so dishonest, and so antithetical to the rule of law that three career lawyers refused to sign their names to it. They were true to their oaths to uphold the Constitution and took a principled stand. One of the attorneys even resigned.

The rule of law depends on lawyers and judges adhering to certain principles.

So who did the brief get signed by? A Republican political appointee signed it when no one else would: Acting Assistant Attorney General Chad Readler. On the same day, President Trump nominated him to a powerful lifetime position as a judge on the Sixth Circuit Court of Appeals, just one level below the United States Supreme Court. It has long been clear that Trump sees the courts as extensions of his own power, not as an independent branch of government that holds him in check and puts political ideology aside.

And that gets us back to Trump’s most recent nominee, Brett Kavanaugh, who passed the president’s litmus tests—and who is being considered for a seat on the Supreme Court as a case works its way through the federal courts that would allow the ultra-conservative justices on the Court a chance to wreck Obamacare.

Guaranteeing coverage to people with pre-existing conditions has saved lives and kept families from financial ruin across the nation. We cannot go back to pre-ACA days. Our lives depend on it.


ACA, Affordable Care Act, Brett Kavanaugh, health care, Protecting the Supreme Court, Supreme Court