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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.

ABA/NewscomABA/NewscomThat 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."

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  • Just Say'n||

    "Somewhat unusually, the Trump administration has declined to defend the health care law in court"

    I find it "unusual" that you continue to insist that this is an "unusual" action. Have you just memory-holed the previous executive's unwillingness to defend laws it didn't approve of in court?

  • damikesc||

    Yes. It was unusual when Obama did it. NOW, it is the norm and expected.

    You can't lose your virginity twice.

  • Radioactive||

    sure you can, once in front and once in the rear. not to mention other orifices

  • Quo Usque Tandem||

    Your comment is disturbing on many fronts

  • GeoffB1972||

    And backs.

  • VOTE MILES||

    Does the memory hole count as an orifice?

  • sharmota4zeb||

    I hope so, cause the mouth is one ... and that stuff some folks do with ears is just plain freaky.

  • Eman||

    Orifi?

  • Procyon Rotor||

    Only if you spell it orifus.

  • Brett Bellmore||

    Apparently he has. I'd say at this point it's approaching routine.

  • Bubba Jones||

    I don't recall specific examples, but it seems unlikely that Obama was the first to do this.

  • Rossami||

    The Trump administration was not the first and neither was Obama. But statistically, it is true for both administrations (and for all the prior ones) that it is "unusual" for the current administration to decline to defend any law.

  • Just Say'n||

    "wrong" and "unusual" are not synonyms. "Unusual" suggests something is out of the ordinary. No doubt, the executive not fulfilling his obligation to defend laws is "wrong", but it is anything, but "unusual".

    Also, I would be curious as to which administration was the first to begin this practice. It is my understanding that the previous administration was the first to begin doing this. I might be wrong, but I don't recall the practice occurring before.

  • Happy Chandler||

    The first one mentioned in this article was in 1948, so Truman?

  • Ben of Houston||

    The executive has a duty to not enforce any part of the law that is unconstitutional. It only goes overboard when the executive branch ignores a law to the point of it not being a law, especially if this is due to policy disputes instead of discussions of rights.

    In this case, Trump is agreeing that the ACA's individual mandate is unconstitutional and is openly refusing to defend it. This is far better than the alternative, which is to do a deliberately bad job of the defense.

    Various NGO interveners are stepping in to defend the law.

  • ||

    Welcome to Canada by other means.

  • Don't look at me.||

    The real outrage is the form letter made up before they knew who the nominee was. Not a lot of thought process being used.

  • Radioactive||

    so democratic.

  • Cynical Asshole||

    Was anyone actually surprised by that though?

  • Eman||

    Oh, please. this is nowhere near outrageous enough for any voters to defect over. Who are they going to vote for, republicans?

  • OpenBordersLiberal-tarian||

    BREAKING: ADL full statement on @POTUS' #SCOTUSPick, Judge Brett Kavanaugh:
    Please read the Anti-Defamation League's statement on this dangerous right-wing extremist. When even nonpartisan civil rights groups like the ADL are concerned, that's a clear indication this is no routine appointment. Kavanaugh's confirmation will literally cause misery and death for countless marginalized Americans. Contact your Senators and tell them to fight Orange Hitler's plot to reshape the Supreme Court.

    #Resist
    #StopKavanaugh

  • Quo Usque Tandem||

    Go # yourself

  • vek||

    Are they suggesting that he will be the swing vote on the court who decides it is okay to gas the Jews???

  • sharmota4zeb||

    The tweet expressed concern over Kavanaugh's civil rights positions. Civil rights, as applied toward Jews, is on of the ADL's reasons for existing. Do you have any information backing up that vague concern?

  • sharmota4zeb||

    Frankly, I've experienced violent hate from the occasional Republicans with light skin who hate Jews and sexual minorities on the one hand and the occasional Democrats with dark skin who hate Jews and sexual minorities. In recent decades, violence from bigoted Democrats was more common. That's why I don't automatically assume that a Democrat will defend civil rights better than a Republican will.

  • vek||

    I was obviously being a smart ass, because nobody will be trying to gas Jews in the USA anytime soon.

    Interestingly, unless the numbers have changed in the last couple years, non whites in the USA pretty much across the board have been FAR more anti-Semitic AND anti gay than whites. Blacks and Hispanics both don't have the whole "white guilt" thing, so think it's fine for them to bash Jews and gays.

    Of course for some crazy reason the ADL rarely makes a point of calling out the MOST ANTI-SEMITIC groups in the country for their beliefs, but choose to concentrate on the less anti-Semitic white folks... Perhaps because they don't agree with the rest of their politics that have NO RELATION to actually being racist or against Jews?

    The ADL and many other mainstream Jewish groups are mostly just left wing groups that try to push the whole agenda, and use racism/etc as a bludgeon. There are of course a ton of Jews who don't agree with this, and many Jewish organizations that don't either... But most of the big ones tend to be on the left wing bandwagon.

  • Cynical Asshole||

    Although abortion and the possibility of Roe v. Wade being overturned will no doubt figure prominently in Democratic messaging fear mongering...

    FTFY

    "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.
    ...
    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.

    IOW, Chuck "Moobs" Schumer is a lying piece of shit. What a shock.

  • BYODB||

    It's not a fight over Kavanaugh in particular, and you can tell that's the case since they are making the same arguments today that they were making before Trump even announced his pick.

  • Brett Bellmore||

    Of course it's not about Kavanaugh in particular. It's about, as the parody says, the Democrats' fear that the Supreme court will end up unduly influenced by the Constitution.

  • Quo Usque Tandem||

    Well put; I believe that is exactly what they are concerned about, as they pander for votes by giving away whatever they can for free* as well as subverting the Constitution

    *of course "we" have to pay for it

  • BYODB||

    Obviously, given that Kagan was appointed and confirmed despite having zero judicial experience whatsoever.

  • DesparateReasoning||

    Hilarious angle for the Dems to choose considering Kavanaugh provided the logic of Obamacare = Tax in his Appellate dissent that was used by Stevens to justify Obamacare.

  • Mickey Rat||

    What good is consistent reasoning if it does not get you to the correct outcomes?

  • ThomasD||

    So the 'need' for healthcare 'reform' was nothing more than a Democrat party Trojan horse for extending state control over everyone and everything?

    Wow, never saw that coming.

  • Darth Soros||

    "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," says Chuck Schumer (or "State-shtupping Chuck," to use his Marvel Comics nickname).

    Fear not, Chuckster! You guys have the moolah, and apparently the willingness to redistribute it. The Hollywood Left alone (that part not still paying off sexual harassment lawsuits) could easily afford to buy every poor person in the US a good basic health-care policy. Or is it just the redistribution of other people's money that floats your boat?

  • Number 2||

    So the Dems have already given up on the "Trump nominated Kavanaugh as protection against a Mueller indictment" argument? That was fast. It was only a day ago that Maryland's senior senator was quoted in the Baltimore Sun saying that Kavanaugh was nominated because he promised Trump that he'd quash any indictment Mueller might bring.

    I predict that before this circus is over, Anita Hill will be pulled out of mothballs to allege that it really was Kavanaugh, not Clarence Thomas, who sexually harassed her.

  • Happy Chandler||

    You may not be aware, but there are things called people. Many of these people are Democrats. They have agency and can decide individually what their views are. So "The Dems" do lots of different things.

  • VOTE MILES||

    You just made that up.

  • vek||

    I'm pretty sure The Dems are actually a Borg like hive mind...

  • Rockabilly||

    Obamacare blows chunks. That is all.

  • Happy Chandler||

    King v Burwell was originally thought as nonsensical as the current lawsuit is. The plaintiffs presented a nonsensical reading of the law that was flatly contradicted by the historical record. It was mostly ignored outside a few conservative legal circles, because the chance of success was seen to be roughly Hail Mary levels. Maybe Patriots/Falcons 28-3 Super Bowl level (bad example).

    Four justices were sufficiently motivated by their preferred political outcome to back the argument. There's no guarantee that Roberts wouldn't follow suit. His style is more to quietly neuter laws than flat out overturn, but that may be changing.

  • Duelles||

    The world is full of idiots. Mostly idiots that dump garbage improperly.

  • LarryA||

    All the Democrats want is a bipartisan, balanced approach.

    Liberal presidents should nominate justices they agree with.
    Conservative presidents should nominate justices they disagree with.

  • Marty Feldman's Eyes||

    And neither party should nominate judges that think it's ok to interfere with a woman making her own healthcare decisions.

  • Rev. Arthur L. Kirkland||

    What do you think this is -- a libertarian website?

  • vek||

    Of course not! But if it were a purist libertarian could still make the argument that human life, hence rights, begin at SOME point before 9 months... In which case determining that point would be of some importance if one wanted to protect the rights of the person.

    Personally I'm all for killing babies being carried by broke blow it case losers (future welfare cases!) and people who don't want them... They won't be raised well in many cases, and we kill people all the time for plenty of other reasons, so why not kill babies to avoid the welfare and criminal justice system costs?

  • sharmota4zeb||

    The right to make one's own healthcare choices is essential. The decision to use or refuse mind altering drugs is a personal choice. Under the current law, hospitals can force someone to take mind altering drugs against her will and Obamacare forces her to maintain a system to pay for that treatment.

  • DesigNate||

    How about they shouldn't nominate someone that thinks the government has a right to interfere in ANY of bodily choices?

  • sharmota4zeb||

    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."

    Democrat:
    Our party fights for universal healthcare. If you don't join us, who will pay for the physical therapy to fix your knee?

    Republican:
    There's nothing wrong with my knee.

    Democrat:
    ;)

  • Star1988||

    The current state of US healthcare doesn't look anything like a free market. Insurance-fueled inefficiencies give us $30,000 automatic trauma team assembly charges when an EMT calls in an arriving accident victim. Showing up at emerg can trigger facility costs of over $5000 when you step in the door. The number of rent seekers in the system prevents actual healthcare service costs from coming down to sane levels. Here's the thing: government costs per capita here already rival those of the best national health services (France, Singapore, Austria, Japan, Norway etc...) And this is happening while covering a fraction of the population, and delivering sub-standard outcomes at a population level.

    Where are the libertarian, or even conservative proposals that drive down cost and improve outcomes? The ACA was an ugly pass at putting lipstick on a pig. Why can't anyone come up with a uniquely American healthcare system that can rival the rest of the world? America doesn't seem to have this problem competing in other industries.

  • MJBinAL||

    You already answered your question, "The number of rent seekers in the system".

  • vek||

    Yup.

    Everybody who has a choice in the matter should switch to HSAs and we could effectively collapse the current BS paradigm by willingly taking control of our health spending back over. It would take time, and be an uphill battle, but if 50% of the country was price checking and paying out of pocket for all their small expenses again, it would force the industry to become more transparent.

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