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Don't Expect Brett Kavanaugh To Protect The Affordable Care Act

President Donald Trump listens as Judge Brett Kavanaugh his Supreme Court nominee speaks, in the East Room of the White House, Monday, July 9, 2018, in Washington. (Evan Vucci/AP)MoreCloseclosemore
President Donald Trump listens as Judge Brett Kavanaugh his Supreme Court nominee speaks, in the East Room of the White House, Monday, July 9, 2018, in Washington. (Evan Vucci/AP)

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Thanks to Brett Kavanaugh’s 12 years as a judge on the D.C. Court of Appeals, we have a well-developed record of the Supreme Court nominee’s positions on key issues, including his views on American health care policy.

In two high profile cases in 2011 and 2015, Kavanaugh upheld key parts of the Affordable Care Act (ACA). But these cases, taken out of context, are misleading. They should not distract anyone evaluating his long record, nor overly inform how he might decide in future cases when it comes to health care.

Besides his record on reproductive health — which is controversial and is already creating significant opposition to his confirmation — Kavanaugh has exhibited strongly-held ideas about the relationship of the courts to government agencies and bureaucracies that carry out most of American public policy, also known as “the administrative state.”

Kavanaugh’s opinion on the administrative state is key to understanding his approach to health care policy and initiatives.

This includes the Department of Health and Human Services (HHS), which is the agency that largely carries out health care initiatives. Kavanaugh’s opinion on the administrative state is key to understanding his approach to health care policy and initiatives.

In the 122 cases related to the administrative state he handled during his tenure on the D.C. Circuit, Kavanaugh demonstrated a largely conservative outlook. This is most easily seen in the string of cases in which he supported limiting the Environmental Protection Agency’s regulations and oversight. In these cases he objected to the EPA extending its authority, under the Clean Air Act, to regulate the greenhouse gas emissions of power plants, among other things.

In this regard, he is a classic conservative judge, interested in shrinking the government bureaucracy and reducing the regulatory burden on businesses.

This brings us to the two high-profile cases Kavanaugh ruled on related to the Affordable Care Act (ACA).

In 2011, in Seven-Sky v. Holder, he upheld the ACA’s individual mandate. He argued that the individual mandate should remain in place because it was a tax-related matter, writing:

deciding the constitutional issues in this case at this time would contravene an important and long-standing federal statute, the Anti-Injunction Act, which carefully limits the jurisdiction of federal courts over tax-related matters.

While this conclusion may seem very in-the-weeds, it reflects his long-standing view that judges should act as umpires, and avoid relying on their own policy preferences. At a certain level this is a reasonable position, as policy-making is supposed to rest with the legislative branch (though deciding which actions are “umpire-like” can reflect deeply held policy preferences).

In a 2015 case, Sissel v. U.S. Department of Health and Human Services, Kavanaugh concluded that the ACA did, indeed, originate from the House of Representatives, complying with the Constitutional requirement that all revenue raising bills begin in the House and not the Senate.

Some analysts have interpreted these two decisions as a sign that Kavanaugh is sympathetic to the ACA, and perhaps more liberal on health care issues than on other regulatory topics.

But I am not so sure. How do we reconcile Kavanaugh’s overall track record on administrative cases, which is clearly conservative, with his theories on health law?

The key may lie in his dissent in a 2017 case, United States Telecom Association v. Federal Communications Commission. In the dissent, Kavanaugh argued that if someone challenges a regulation that exceeds the scope of its legal authorization, the regulation should be presumed invalid if Congress has not spoken on the matter, and the question is one of deep economic and political significance.

Stated otherwise: Kavanaugh expects Congress to say explicitly when it wishes to assign decisions of economic and political significance to any federal agency. Otherwise, a federal agency — such as HHS — should stay in its lane and does not have the authority to interpret the intent of legislation.

Without an explicit mandate from Congress, Kavanaugh would say an agency is at risk of overreaching its authority.

In his health law decisions, Kavanaugh found that Congress explicitly authorized the challenged portions of the ACA. It's likely he would uphold health law regulations, as long as there is explicit Congressional authorization to do so.

HHS might be blocked from extending protections to gay and transgendered individuals because Congress didn't go into sufficient detail.

The challenge is that Congress is increasingly unable to pass health care-related laws, and most of our health care policy is done via the initiatives of several federal agencies. For example, Section 1557 of the ACA, bans discrimination in health care. But the statute is only a few lines long, as is typical, and so HHS has had to make important policy choices in how it will be implemented — such as whether it prohibits discrimination against individuals who identify as transgendered or gay.

HHS might be blocked from extending protections to these individuals because Congress didn't go into sufficient detail. Other key provisions — such as deciding which young adults can remain on their parents' insurance policies or what information insurers are required to give consumers — are also at risk.

When challenges to these initiatives and others reach the Supreme Court, it's likely Kavanaugh will be unsympathetic.

As Kavanugh’s confirmation process continues, questions related to health care policy broadly — and the ACA specifically — will be front and center. Should he be confirmed to the Supreme Court, the real protection for the ACA and future health care initiatives will be for voters to push Congress to pass laws that explicitly delegate broad authority to the relevant agencies. That’s the only way crucial regulations of the ACA can avoid being struck down by the argument of administrative overreach.

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Carmel Shachar Twitter Cognoscenti contributor
Carmel Shachar, JD, MPH is the executive director of The Petrie-Flom Center for Health Law, Biotechnology, and Bioethics at Harvard Law School.


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