The Fight Over Brett Kavanaugh Is a Preview of a Future In Which All Political Arguments Are Health Care Arguments

Trump's SCOTUS nominee probably won't have an impact on Obamacare. But that won't stop Democrats from making the argument.



That Democrats would mount a ferocious opposition to Donald Trump's nomination to replace Anthony Kennedy on the Supreme Court was a foregone conclusion: Before the name was released, Democratic strategists publicly discussed the need to oppose the nominee regardless of who it was. After Trump announced that he had picked Brett Kavanaugh, one prominent liberal activist group accidentally sent out an email slamming Trump's nomination of "XX." The exact reasons why they would oppose any Trump nominee could come later.

Later is now, and Democrats appear to have settled on a tip for their spear: Although abortion and the possibility of Roe v. Wade being overturned will no doubt figure prominently in Democratic messaging, the party's leadership is pushing health care as the primary reason to oppose Kavanaugh. In particular, the notion that he might prove decisive in a vote to overturn Obamacare's preexisting conditions rules.

"We Democrats believe the number one issue in America is health care and the ability for people to get good health care at prices they can afford. The nomination of Mr. Kavanaugh will put a dagger through the heart of that cherished belief that most Americans have," Senate Minority Leader Chuck Schumer said earlier this week.

This is not just a preview of the fight over Kavanaugh, or even of the coming midterm election, although it is certainly both. It is also yet another indicator of how, in the age of Obamacare, all political arguments tend to become health care arguments.

The Democrats' case against Kavanaugh, as much as there is one, has to do with a legal challenge now working its way through the court system. A group of conservative states led by Texas is challenging the constitutionality of Obamacare, arguing that because the individual mandate was upheld as a tax, and was set to zero by last year's GOP tax law, it no longer raises revenue, and therefore is no longer constitutional as a tax. Furthermore, the challengers argue that because the mandate is central to the law, the entire statute should be struck down. Somewhat unusually, the Trump administration has declined to defend the health care law in court, filing a brief arguing that although much of the law should remain in place, the preexisting conditions rules should be struck down along with the mandate.

The Democratic line of thinking is that should the challenge ever reach the Supreme Court, Kavanaugh, as both a Trump pick and a former senior White House staffer under George W. Bush, would likely side with the Trump administration.

As a legal argument, this is at best a stretch. The Texas-led case is weak enough that it has been criticized by legal experts all over the ideological spectrum. It's not even clear whether the states have standing to sue. The probability is low that the Supreme Court will ever hear the case.

But even if it did, Chief Justice John Roberts' opinion, which states that the "only consequence" of failing to comply with the mandate is triggering a tax penalty, seems to hint that he would not buy the argument that other parts of the law should fall if the mandate is struck down. That means there would likely be five votes to keep the rest of the Affordable Care Act in place, regardless of how Kavanaugh voted.

Kavanaugh's own record on Obamacare, meanwhile, suggests that he might take a minimalist approach to the law: In a dissent, he wrote that the courts should "respect" the "legislative effort" behind the law, and give significant weight to its "vital policy objectives."

The Supreme Court is unpredictable. It is impossible to completely rule out the possibility that it will rule in a way that significantly alters or affects the health care law. But the evidence suggests that Kavanaugh is unlikely to be the decisive vote in any foreseeable case.

However, it would be a mistake to see this line of attack merely as Democrats misjudging the viability of the Texas lawsuit. For many Democrats and their supporters, this is about developing a political message designed to unify the party and carry it to victory in the 2018 midterms. It does Dems no good to treat any Republican threat as insignificant.

Organizing around Roe and abortion access would no doubt motivate the party's base, but it could prove a problematic message for some red state Senate Democrats. The Joe Manchins (D–W.V.) and Joe Donnellys (D–Ind.) of the world, however, will have a far easier time supporting Obamacare and the various forms of coverage it regulates and supports. This is why Sen. Manchin's response to Kavanaugh's nomination was to warn that "the Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their health care."

So between the Democrats' successful opposition to last year's GOP repeal effort, and the role they want Obamacare to play in the 2018 midterm, it would appear that the future of American politics will increasingly revolve around health care policy—even when the connection is more a product of partisan convenience than real concern. That will be especially true for Democrats, who are likely to find the issue favorable for as long as Republicans continue to treat health care mostly as an afterthought.

The dominant role of health care policy in national politics has of course long been a fixture in many other Western nations, and of course U.S. politics have often touched on health care as well. But the passage of Obamacare in 2010 elevated and amplified those debates here in the U.S., rendering the issue permanently prominent.

In many ways, that is the fundamental nature of Obamacare and a significant part of its political legacy. By adding subsidies and regulations to individual plans operating in the private market and expanding Medicaid, the law solidified the idea that health care is primarily the responsibility of government, and that frustrations with the delivery and provision of care should be resolved in the public sphere. It did not socialize the nation's health care system, but it did socialize the debate about health care.

In the process, it all but ensured that numerous future political fights, like the one over Kavanaugh, would be fought on the terrain of health policy. And although the coming battle over single payer on the left could change this dynamic somewhat, it seems more than likely that health care will remain a convenient, catch-all reason for doing or opposing "XX."