This post provides a summary of Republican legal efforts to repeal the Affordable Care Act, and describes the impact that will be felt if Brett Kavanaugh is confirmed as a Supreme Court Justice.
Seven-Sky v. Holder (2011)
NFIB v. Sebelius (2012)
King v. Burwell (2015)
Texas v. United States - ACA Complaint (2018)
The 2010 Act of Congress, often referred to as "ObamaCare", but officially known as the Patient Protection and Affordable Care Act (ACA) was written at a time when millions of Americans either couldn't afford or couldn't qualify for health insurance. At that time, a Harvard study concluded that 45,000 preventable deaths a year were attributed to lack of health insurance.
The Affordable Care Act is a straightforward solution to a difficult problem. It saves lives and it saves money. It replaced a complex set of rules that made insurance unaffordable for many, and often unobtainable for those who needed it most. The ACA accomplished this by creating incentives that encourage everyone to purchase health insurance, and by subsidizing insurance for those who cannot afford it. With more people covered, overall costs are reduced and pre-existing conditions are no longer a barrier to coverage. And as a result, people are healthier.
In 2016, two years after the ACA took full effect, more than 20 million Americans had gained coverage through the provisions of the Affordable Care Act. And in 2015, a Congressional Budget Office report concluded that eliminating efficiencies created by the ACA could increase the budget deficit by more than 100 billion dollars over the course of ten years.
But Republicans never met a government program they didn't hate, even if it ultimately saves millions of lives and billions of dollars. And Donald Trump is only too happy to cater to his base, regardless of who is harmed or what it costs the country.
In June 2015, Donald Trump tweeted: "If I win the presidency, my judicial appointments will do the right thing unlike Bush's appointee John Roberts on ObamaCare."
In spite of — or perhaps because of — the ACA's success, conservatives want to take down "ObamaCare" any way they can. By nominating Brett Kavanaugh, the Republicans will gain the ability to do in the courts what they couldn't do in Congress — eliminate the Affordable Care Act.
Their effort to repeal the Affordable Care Act has been prosecuted across all three branches of the government: it's involved a series of failed votes in Congress, plus two unsuccessful Supreme Court challenges, and most recently, the Trump Administration has begun exercising its discretionary authority to the detriment of the ACA.
The history of Republican attempts to repeal the Affordable Care Act through the courts is complex, but it will be important to understand this history in the upcoming confirmation hearings for Brett Kavanaugh.
- In 2012, the first legal challenge to the ACA reached the Supreme Court. The Court verified in NFIB v. Sebelius that incentives for having health insurance coverage are constitutional under the congressional power to tax.
- The ACA also withstood the next Supreme Court challenge, King v. Burwell (2015). This case questioned the legitimacy of offering tax credits to individuals in certain states that elected not to create state-sponsored health insurance exchanges in accordance with the Act. The complaint was based on ambiguous language contained in the original bill and was resolved by the Supreme Court to support the evident intent of Congress.
- In 2018, thirty state governments led by Texas, filed a complaint against the U. S. Government. Citing the Supreme Court decision in NFIB v. Sebelius, the Texas complaint claims that the Affordable Care Act is no longer functional due to changes imposed by the Republican-led Congress.
- Although sworn to faithfully uphold and maintain the laws of the United States, the Trump Administration's Justice Department has recently declined to defend the ACA against the Texas complaint. This challenge may soon be on its way to the Supreme Court.
For many with serious medical conditions, this is a life-and-death matter. The fact that the ACA keeps facing new threats dreamed up by Republicans is a cruel and unnecessary burden on those most at risk. The Republicans can't seem to allow the ACA to succeed, so they have created instability and anxiety around medical coverage ever since it was passed.
Interestingly, in the complex maneuvering around the attempted destruction of the ACA, Judge Kavanaugh issued a dissent in the related case known as Seven-Sky v. Holder. This opinion was mistakenly interpreted as favorable to the ACA by some conservatives, which led them to question Judge Kavanaugh's commitment to abolishing the ACA. But two former high court clerks have weighed in to assure fellow conservatives that Kavanaugh's actions were only laying the groundwork for the Supreme Court to overturn the Affordable Care Act:
- Former Supreme Court clerk, Justin Walker: "I am very familiar with that opinion, because I served as Kennedy’s law clerk that term. I can tell you with certainty that the only justices following a roadmap from Brett Kavanaugh were the ones who said Obamacare was unconstitutional."
- Former Kavanaugh clerk, Sarah Pitlyk: "No other contender on President Trump’s list is on record so vigorously criticizing the law. And as another of Judge Kavanaugh’s former law clerks has explained in depth, any suggestion that his decision paved the way for the Supreme Court’s disastrous ruling is, as Justice Scalia would later put it in an Obamacare dissent, "pure applesauce." The Supreme Court Justices who followed Judge Kavanaugh in the Obamacare case were the dissenters, Justices Scalia, Thomas, Alito, and Kennedy."
In his 2011 dissent in Seven Sky, Judge Kavanaugh referred to the ACA's system of incentives for health insurance as "a law that is unprecedented on the federal level in American history," and its implications, as envisioned by Judge Kavanaugh, presented "a jarring prospect."
More bluntly, speaking to fellow conservatives at the Heritage Foundation in September of 2017, Kavanaugh insisted that the Supreme Court should not have upheld the ACA in NFIB v. Sibelius.
Republicans have done everything in their power to subvert the Affordable Care Act. With Brett Kavanaugh on the Court, they will finally finish the job.
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