Kavanaugh's Obamacare rulings under microscope as he meets Manchin

CNN/Stylemagazine.com Newswire | 7/30/2018, 9:36 a.m.
When a lawsuit challenging the Affordable Care Act reached his Washington, DC, appeals court in 2011, Judge Brett Kavanaugh was ...

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

(CNN) -- When a lawsuit challenging the Affordable Care Act reached his Washington, DC, appeals court in 2011, Judge Brett Kavanaugh was careful not to commit. He described the law requiring people to buy health insurance as "unprecedented" and the breadth of Obama administration's defense of it "jarring."

"[T]here seems no good reason," wrote Kavanaugh, now President Donald Trump's choice for the US Supreme Court, "that [the administration's] theory would not ultimately extend as well to mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance, for example."

But at the same time, Kavanaugh said judges "should be wary of upending" Congress' effort to help provide Americans with quality health care. Kavanaugh would dissent from the 2-1 ruling in Obamacare's favor, but his legal reasoning was, in essence, a dodge. He said judges simply had no jurisdiction at that point to resolve the merits of the dispute.

Kavanaugh has never outright rejected, or endorsed, the 2010 law known as Obamacare. His opinions bear the mark of a careful jurist on a court well known as a launching pad to the Supreme Court. He watched what he said.

Now, as health care promises to become a flashpoint in his Senate confirmation battle, Kavanaugh may have to persuade crucial middle-ground senators, such as West Virginia Democratic Sen. Joe Manchin, that he would preserve Obamacare, particularly its protections for people suffering from cancer, diabetes and other so-called pre-existing conditions.

Manchin is scheduled to meet with Kavanaugh on Monday, becoming the first Democratic senator to do so. Manchin, running for re-election in conservative West Virginia, could be under heavy pressure to support Kavanaugh this fall.

The fate of the health care law isn't an abstract question. The Trump administration is backing a lawsuit brought by Texas and other Republican-led states challenging the requirements that insurers offer coverage to everyone regardless of their medical history and do not charge more to people who have had certain health conditions.

Manchin this month urged Attorney General Jeff Sessions to reconsider the administration's refusal to defend the law, which protects millions of Americans, including, Manchin said, nearly 800,000 West Virginians living with pre-existing conditions.

That new case, Texas v. United States, could ultimately land at the Supreme Court, where a new Justice Kavanaugh, tapped to succeed the retiring Anthony Kennedy, could make the difference in whether a popular ACA plank survives. (Kennedy voted against the individual insurance mandate in 2012, but supported Obamacare in a separate 2015 test; it is difficult to predict how Supreme Court votes would fall in the new Republican challenge, but they are likely to be narrowly divided.)

Kavanaugh's critics on the left contend his conservatism over the past 12 years on the US Court of Appeals for the District of Columbia Circuit would lead him to rule against the Affordable Care Act.

Signs of his opposition to the law were plainly sufficient to satisfy Trump, who has long railed against the signature domestic achievement of President Barack Obama and has vowed to appoint justices who would overturn it.