The Democratic Party believes that its strongest argument against Donald Trump’s latest Supreme Court nominee and the GOP’s congressional majority is that both pose a clear and present danger to Americans’ health care.
Specifically, Democrats maintain that Brett Kavanaugh’s jurisprudence on the power of regulatory agencies suggests that he would be open to striking down the Affordable Care Act’s regulatory protections for people with preexisting conditions. And the party further argues (more indisputably) that the GOP’s congressional leadership would love to undermine those protections — and gut funding for Medicaid and federal health-care subsidies — if they ever get a large enough Senate majority to pull off such feats.
It isn’t hard to see why Democrats have chosen to put health care at the center of both their midterm campaign and opposition to Kavanugh’s confirmation. The GOP’s proposed Obamacare replacement, the American Health Care Act, ended up being the most unpopular piece of major legislation in our nation’s modern history. Shortly after the bill’s introduction last spring, the Democratic Party opened a double-digit lead in polls of the 2018 generic ballot, while President Trump’s job approval rating dipped. Subsequent surveys showed the public favoring the Democrats over the Republicans on health-care policy by wide margins.
Thus, it is difficult to understand why the Trump administration decided to revive its crusade against Obamacare or, more precisely, against the law’s single most popular provision — its protections for people with preexisting conditions — this summer.
Back in June, the Justice Department announced that it would not defend the Affordable Care Act from a challenge brought by a group of red states, which had claimed that Congress’s repeal of the individual mandate rendered the law’s prohibition on discrimination against people with preexisting conditions invalid — as that provision is not severable from the rest. This is a legal claim so radical and ill-supported it made the National Review blush. The notion that Congress is not constitutionally allowed to eliminate the ACA’s insurance mandate — unless it also repeals the law’s other regulations of the health-care market — is not some sacred principle of constitutional originalists. Rather, it’s an ad hoc rationalization for the judiciary to veto a duly-passed expansion of the safety net. And yet, Attorney General Jeff Sessions concluded that his department could make no honest argument against the plaintiffs’ case.
On Tuesday, a federal judge scheduled oral arguments in that case for September 10 — just days after Kavanaugh’s confirmation hearings conclude, and weeks before the midterms. Which is to say: Right before the Senate casts its judgment on Kavanaugh — and voters cast theirs on the congressional GOP — the White House and its allies will be making the Democratic Party’s case against both for it.