Could Justice Kavanaugh Kill Obamacare?
Don’t bet on it, despite what Senate Democrats are saying. But if he did, it could finally open up the path to a single-payer system.
A Supreme Court battle is on, people. And — despite what you’re hearing about abortion — Senate Democrats want to make it about health care.
In the days since Brett Kavanaugh’s nomination was announced, Senate Minority Leader Chuck Schumer has already started the campaign to dissuade senators from supporting him on the basis that “Judge Kavanaugh has argued that the Supreme Court should question the constitutionality of the Affordable Care Act.” Schumer added, “[Kavanaugh] openly criticized the Supreme Court when they upheld the law. He’s no neutral arbiter.”
Sen. Joe Manchin (D-WV), who Democrats desperately want to oppose Kavanaugh and who Trump was presumably looking to tempt at least a little with his nomination, is also talking about the supposed Kavanaugh threat to the ACA. “The Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their healthcare. This decision will directly impact almost 40 percent of my state, so I’m very interested in his position on protecting West Virginians with pre-existing conditions,” the Hill quoted Manchin as saying earlier this week.
Axios reported Wednesday that “Front and center in Democrats' emerging campaign against Judge Brett Kavanaugh is the argument that he could, if confirmed, strike down the ACA's protections for pre-existing conditions.”
Politico cites Sen. Susan Collins (R-ME) saying that more than $5 million has already been reserved in Maine and Alaska to try to keep her and Sen. Lisa Murkowski (R-AK) from voting to confirm Kavanaugh. Both are pro-choice Republicans—and they’re also two of the three Republicans who voted against a GOP Obamacare repeal effort in the Senate.
So on its face, framing the Kavanaugh fight this way seems like a smart strategy from Schumer & Co. Health care is a, if not the, top priority of voters according to a bunch of polls. Collins, that sought-after “no” vote,” doesn’t have a record of rejecting judges; but as noted, she has rejected Obamacare repeal.
Talking about abortion risks (further) motivating anyone who’s pro-life, whether they’re conservative, moderate, or something else, to vote Republican. By contrast, a focus on health care does less to either deter people who might be pro-life but aren’t enthusiastic about voting GOP in November from voting Democratic instead this time, or alternatively just sitting the election out.
Still, there are a few flaws and ironies in this strategy.
A big one is that it pre-supposes that if an Obamacare case came before the Supreme Court, Chief Justice John Roberts would reverse his prior ruling and now find the ACA unconstitutional. That seems unlikely to happen, and if it doesn’t, the math simply doesn’t work.
But here is another, more philosophically-intriguing and less practical, vote-counting thought: Would Democrats, at least those on the party’s left flank who desperately want to institute Medicare-for-All, actually be better off with regard to that solitary objective were Kavanaugh seated on the bench?
If we pretend for a minute that Schumer has read Kavanaugh right, and that a Justice Kavanaugh would find the ACA unconstitutional and that Roberts would change his vote on a second hearing of an Obamacare case, doesn’t that actually make it easier and arguably politically more imperative that Congress pass single payer into law when that “unconstitutional” judgment comes down?
The ACA falling by the wayside, thanks to a Supreme Court verdict, would throw the American health-care system back into its former state—which, to be fair, some people preferred to life under Obamacare, but many view as not qualitatively different, and a great many would regard as much worse. In the short term, it would certainly be chaotic, to say the least.
In that situation, outcry for Congress to “do something” to assure people of care would go through the roof.
Republicans would likely have no ready plan of action (save Ayn Rand-ish free-market reform ideas, which might get the votes of Sen. Rand Paul, Sen. Mike Lee, Sen. Ted Cruz and the Freedom Caucus, but probably few others, and would be supported by probably 10 percent of the population, yours truly included). The GOP has tried “repeal and replace” before, and has succeeded in accomplishing neither.
By contrast, Democrats urging Medicare-for-All would have a ready solution at hand. Moreover, it would be one involving an entitlement program that has existed for decades now and is, in its current state, only regarded as controversial or inherently flawed by the most fervent of libertarians and rock-ribbed conservatives, and doesn’t seem likely to become the focus of major constitutional law litigation.
Medicare-for-All, or at least Medicare-for-those-who-want-it, is becoming more popular, too. A March Kaiser Family Foundation survey found that “six in ten (59 percent) favor a national health plan, or Medicare-for-all, in which all Americans would get their insurance from a single government plan – including a majority of both Democrats and independents and about one-third of Republicans.” Fully 75 percent of those surveyed supported the idea of Medicare-for-those-who-want-it.
Those numbers likely do not include a bunch of moderate Democrats that Schumer wants to vote against Kavanaugh (or, frankly, your author); perhaps that’s a smidgen of the rationale here (flawed though Obamacare is, really, imperiled red state Democrats probably do think Medicare-for-all is a flawed idea and a bonkers thing to run on, and that the ACA is better).
But it remains the case that if Schumer really believes his own rhetoric, that Kavanaugh and a flip-flopping Roberts will join forces to find the ACA unconstitutional if allowed to do so, he’s arguably giving his left flank a pretty solid reason to vote for Kavanaugh.
If Schumer is right, Kavanaugh might just be their fastest, cleanest route towards what the GOP has always accused Democrats of truly wanting, and which they now seem to be actively embracing: Universal, single-payer health care in America.