As my colleague Susan Ferrechio reports, Democrats are trying to make Obamacare — and particularly its pre-existing conditions regulations — a centerpiece of their opposition to the confirmation of Supreme Court nominee Brett Kavanaugh.
“At the top of the list is healthcare,” Senate Minority Leader Chuck Schumer, D-N.Y., said when he was asked what aspect of Kavanaugh’s nomination Democrats plan to attack. “This nominee will make the ability of Americans to afford decent healthcare so much the worse.”
The their line of attack is fairly flimsy. A lawsuit 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 Democrats. 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 backgrounds, 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.
Kavanaugh has been well known in Washington legal circles for decades, and when his name was added to Trump’s Supreme Court list last November, it immediately raised eyebrows and made him one of the favorites for the next vacancy. So, liberal groups have had nearly eight months to dig up dirt on Kavanaugh. If right out of the gate they are hinging their whole line of attack on this Obamacare gambit related to a longshot lawsuit, it suggests they have not found much on him.
