WASHINGTON — If Republicans are hoping Supreme Court nominee Brett M. Kavanaugh will help them knock down Obamacare in the courts, they might be in for a disappointment.
Kavanaugh has signaled in private meetings with Senate Democrats that he is skeptical of some of the legal claims being asserted in the latest Republican-led effort to overturn the Affordable Care Act.
The lawsuit, which begins oral arguments next week in Texas, claims that because Congress last year effectively invalidated a key provision of Obamacare – the requirement that all Americans have health insurance – the entire 2010 law should be struck down.
After repeatedly failing to repeal Obamacare in Congress last year, Republicans are again turning to the courts to strike down the law, despite the fact that the Supreme Court has twice upheld it.
As Kavanaugh made the rounds on Capitol Hill in recent weeks, he suggested that even if one piece of the health care law is ruled invalid, the entire law doesn’t necessarily have to come down with it, three Democrats who were in the meetings told the Los Angeles Times.
In response to questions about the lawsuit, he declined to comment on it directly but repeatedly pointed to the legal idea that one unconstitutional provision shouldn’t eliminate an entire statute.
Kavanaugh’s views on the issue could be important if the Texas case – which the Trump administration has partially endorsed – eventually makes its way to the Supreme Court, as some expect it will.
Democrats said they were viewing Kavanaugh’s comments warily, unsure if they indicated his beliefs or were merely an attempt to use legal semantics to alleviate fears that he would support the renewed legal attack on the Affordable Care Act.
Democratic senators are expected to press Kavanaugh on the issue during his confirmation hearing next week, particularly emphasizing the need to preserve Obamacare’s protections that ban insurers from refusing to cover people with pre-existing medical conditions.
Kavanaugh has not directly indicated how he would rule on this or any other Obamacare case in the closed-door meetings, Democrats said. But when asked about the lawsuit, Kavanaugh repeatedly pointed to the legal concept of severability, or how much of a law needs to be invalidated when one piece is struck down by the courts.
His comments are likely to frustrate some conservatives who had criticized Kavanaugh’s views on an earlier Obamacare case.
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