The fate of the Affordable Care Act may hinge on the appointment of Judge Brett Kavanaugh to the Supreme Court — as Democrats have rightly been pointing out.
But supporters of the health care law, if anything, underestimate the dangers to the law posed by conservative legal challenges and a rightward shift on the Court. Aspects of Kavanaugh’s jurisprudence as it relates to health care, especially his views about executive power, raise concerns that deserve more attention than they have been given so far —particularly because the president and his agencies have been using their powers to sabotage the ACA for more than a year.
One highly politicized challenge to the ACA coming out of Texas has indeed received a lot of attention: It turns on the question of whether the entire health care law should be struck down now that Congress has eliminated the ACA’s penalty for failing to comply with the so-called “individual mandate” to buy health insurance under the law. But the ACA is under attack on multiple legal fronts; anyone concerned needs to focus on more than just Texas.
Taken together, these challenges threaten to end the ACA’s essential protections, including a minimum level of care for all and guaranteed access to quality health care regardless of preexisting conditions.
We all have seen how Supreme Court hearings are often an exercise of evasion more than education. But the debate over confirmation offers an important opportunity to focus Congress and the American people on what is at stake with a rightward shift in power on the Court — and, in turn, what’s at stake in coming elections.
It is important here to separate personal considerations from concerns about law and process. No matter one’s views of Kavanaugh’s personal qualities, his record and views on the law must be rigorously examined.
Senators are well within their rights to use whatever tools they can to clarify just how important this vacancy is before anyone decides how to vote or, indeed, decides whether a vote should be taken at all. This is all the more true in light of the way our confirmation process has been grossly abused in recent years, most strikingly when Republicans lawlessly failed to act on Merrick Garland’s appointment to the Court by President Barack Obama.
There are countless areas in which a rightward shift of the Court poses profound risks, reproductive rights critical among them. But I will focus here on five key areas at stake for health care.
1) Should courts strike down entire laws if Congress renders one part of a statute unenforceable?
This is the question at issue in Texas v. United States and California, which has received considerable attention since Kavanaugh was nominated. Texas is arguing that the entire ACA ought to be struck down — all 2,000 pages of it — because Congress recently reduced the mandate penalty to zero.
The sweeping nature of that claim is precisely what makes it so outrageous. The Supreme Court, in 2012, narrowly upheld the constitutionality of the individual mandate, calling it a permissible exercise of Congress’s power to tax. But in its 2017 tax bill, Congress reduced the tax penalty to zero.
Texas says that means the mandate is now unconstitutional. But, and here is the kicker, Texas also argues the entire ACA must be struck down too, as a result of that conclusion, on the grounds that the mandate is an inextricably important part of the law.
In an alarming departure from traditional practice, the Trump Justice Department has refused to defend the law. DOJ has taken the position that if the Court finds the mandate unconstitutional now, the ACA’s key insurance reforms — including the guarantee of insurance despite preexisting health conditions — must fall too, because they are tied so closely to the mandate.
This is a dangerous and undemocratic argument that ignores decades of settled legal precedent (as I have detailed elsewhere, including in a bipartisan brief filed by five law professors, including one who was the architect of a previous major challenge to the ACA). The legal doctrine is called “severability”: What are courts to do with the rest of a statute when one part of it is found unconstitutional?
The Supreme Court has long held that when it finds a provision of a law unconstitutional, it 1) aims to save, not destroy, as much of the rest of the law as possible; and 2) focuses primarily on congressional intent. In particular, what would the Congress that enacted the law have wanted to happen to the rest of the law, without the offending provision? In this case, that intent is crystal clear: After all, it was Congress itself, not a court, that eliminated the tax penalty in the first place in 2017 while simultaneously leaving the rest of the statute standing.
That would be the end of the matter — for any statute other than the hyperpoliticized ACA. To hold otherwise, to kill the rest of the law when Congress did not and could not, would amount to a gross violation of separation of powers. The Court would be substituting its own judgment for Congress’s.
Kavanaugh has written, in both his scholarship and a judicial opinion, that he follows this doctrine, that he believes statutes should be severed as narrowly as possible, with the remainder of the law left standing for Congress to deal with. Senators must ask Kavanaugh whether he intends to adhere to this principle if confirmed.
Legal experts hope the lower court judges involved in the Texas case will follow settled severability precedent long before this case could ever make it to the Supreme Court (or the courts may just decide the mandate is still constitutional). But the hot-button politics associated with the ACA often produce constitutional showdowns even from meritless legal arguments.
As evidence, remember that in the 2012 case upholding the mandate, four justices — all of the conservatives (including Justice Anthony Kennedy, whom Kavanaugh would replace) except for Chief Justice John Roberts (who did not opine on the issue) — said they would have done what Texas is now seeking: They would have killed the entire ACA had they been able to get a majority to say the mandate was unconstitutional. So we cannot take this case lightly, even if precedent is clear.
2) Can the president sabotage a law he is entrusted to enforce? In other words, can the “take care” clause of the Constitution be enforced against a sitting president?
Since he took office, President Donald Trump has sabotaged the ACA at every turn. I have argued that these efforts violate the “take care” clause of the Constitution, which provides that the president must “take care that the laws be faithfully executed.”
The conservative constitutional law scholar Randy Barnett has argued that a sound reading of the Constitution means that “faithfully executed” must mean what it says: namely, that the president makes sure our laws are implemented in good faith with good motives, and that he uses his executive discretion reasonably toward that end. (Barnett used this argument in challenging the ways President Obama chose to enforce immigration law.)
Historically, making the case for a violation of the take care clause has been a tall order because the executive is often vested with broad discretion to implement the law. But it is impossible to recall a president who has been as clear about his intent to sabotage a major federal law as this president has been about his intent with respect to the ACA.
President Trump has not even pretended that he is faithfully executing the law. After chiding Congress for failing to abide by its “pledges” to repeal the ACA, Trump said he was taking on that job himself: “So we’re going a little different route. … [I]n the end, it’s going to be just as effective.” He has also tweeted: “ObamaCare is causing such grief and tragedy for so many. It is being dismantled.”
He has used his executive authority to stifle enrollment, cutting advertising and “navigator” programs expressly aimed at bringing people into the ACA insurance markets. He directed the Department of Health and Human Services to consider policies that would allow the sale of new insurance plans lacking many ACA protections, in contravention of the ACA’s text. Health and Human Services encouraged navigators to promote those noncompliant plans.
These alternative plans aim to pull healthy individuals out of the insurance markets and leave those who remain — often, people with preexisting conditions — with dramatically increased premiums. The legality of these policies, since they contravene the text of the ACA, are likely to come soon before the federal courts.
This situation is very different from those closer cases of executive discretion in which scholars have disagreed over whether the take care clause provides a cause of action, as with Obama and immigration. Here we have an explicit and intentional — indeed, boasted-about — breach of good-faith enforcement. Many of the acts of sabotage, such as the new insurance options that will pull people out of ACA markets, also directly violate the text of the ACA.
Kavanaugh is a staunch defender of presidential power but has also said he is a close reader of both statutory and constitutional text. He has acknowledged that the take care clause has teeth at least once recently. He should be asked whether the president’s obligation to “faithfully execute” the laws means that he must act in good faith.
Even if the president has violated the Constitution, some experts believe Kavanaugh’s writings suggest he might be loath to allow a lawsuit to proceed against a sitting president, that he thinks impeachment is the only solution to abuse of presidential power.
That also raises questions related to the take care clause: Can we hold this president accountable now for the sabotage he is inflicting? The key legal question for Kavanaugh is whether he believes a take care clause claim could ever be asserted successfully against a sitting president.
3) Should courts allow federal agencies to let states undertake “demonstration projects” that alter fundamental aspects of federal programs?
This one relates most immediately to a set of Medicaid cases that are now percolating in the lower courts. More than a dozen states have sought waivers to cut back Medicaid eligibility by imposing work requirements and other restrictions, including drug testing, and more states are expected to do the same. Additionally, other states are expected to seek waivers displacing the ACA’s insurance protections entirely, for Medicaid patients and non-Medicaid patients alike.
A federal trial court in the District of Columbia last month invalidated the administration’s approval of a Medicaid waiver granted to Kentucky, which would have imposed work requirements and other restrictions. The court held that Trump administration’s approval of the plan had been “arbitrary and capricious” because it had not adequately considered whether the plan would “help the state furnish medical assistance to its citizens, a central objective of Medicaid.”
So how far can a federal agency go, using its powers to grant demonstration waivers, toward changing the fundamental purpose of a federal program? The fact that a statute allows waivers does not give the executive unbridled discretion — or any discretion at all to make moves that conflict with the statute itself. How to judge the validity of waivers is an area of law without much settled precedent, and waivers are used in many contexts, not just health care.
Kavanaugh’s views about the scope of executive authority under such circumstances must be explored.
4) Can the president decline to enforce a law he finds unconstitutional?
Kavanaugh once took the very controversial position that the president indeed has the authority to not enforce a law he finds unconstitutional. The context was a much-scrutinized case in which he refused to let the 2012 constitutional challenge to the ACA go forward. (A different case raising the same issue, the challenge to the mandate, made it up to the Supreme Court in NFIB v. Sebelius.)
In a footnote, Kavanaugh wrote that “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional.” Does that mean that even after the Supreme Court ruled the individual mandate constitutional, President Trump could stop enforcing it because he did not share that view? Or that he can stop enforcing it now because of the Texas case? If so, the ACA might be in imminent danger.
5) Should individuals be able to sue to enforce their rights under federal programs when federal and state governments refuse to do so?
Justice Anthony Kennedy cast a critical vote with the liberal wing of the Court in a 2015 case on the question of whether individuals have the right to sue for proper enforcement of federal programs when the government has fallen down on the job.
That case involved Medicaid, even though this legal question implicates all sorts of private rights, not just health care rights. Medicaid guarantees certain rights to beneficiaries, including the right to see the provider of one’s choosing and the right to be covered if you meet certain eligibility criteria.
Justice Stephen Breyer voted with the conservatives in that case, and the Court did not grant the right to sue in 2015. But Justice Kennedy, whom Kavanaugh may replace, sided with the dissenters, who argued that under circumstances of extreme state violations, private “rights of action” should be conferred.
There are cases pending in the lower federal courts in which individuals are asking the courts to enforce their rights to coverage under federal Medicaid rules, as well as their right to choose their own doctors. In one recent case, the Eighth Circuit Court of Appeals held that individuals could not sue to enforce their right to any qualified provider under Medicaid after Arkansas eliminated Planned Parenthood from its Medicaid program.
The conservative wing of the Court has moved aggressively to curtail the ability of individuals to bring suits to enforce provisions of federal social programs. Judge Kavanaugh has followed those precedents in at least one case. He could potentially change the balance of the Court on this important issue if he disagrees with his former boss Justice Kennedy.
Of course, all these questions have important implications outside of health care too. Abuse of executive power and usurpation of Congress’s powers are threats to all areas of law. And so a rigorous confirmation debate on these issues is critical not only for the Senate, as it decides whether and how to proceed with respect to Judge Kavanaugh, but for the American people. Senators can help make the American citizenry aware how much is at stake for the Court and for the country — in health care and beyond.
Abbe Gluck is a professor of law and faculty director of the Solomon Center for Health Law and Policy at Yale Law School.
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