Upcoming Texas v. US Case Will Test ACA Guarantees Of Coverage
Kavanaugh’s judicial record shows that in at least three different cases, the judge has ruled against upholding key ACA provisions. If the past is prologue as to how a more conservative high court with Kavanaugh on board would rule, new cases now working their way up through the judicial system toward Supreme Court review will test how well all ACA provisions survive.
An example of one new case that would challenge whether insurers have to offer coverage to people with preexisting conditions is the lawsuit pending in the Texas district court. Legal analysts sayTexas v. United Statesis likely to come before the high court within the next year. In the case, 20 Republican state attorneys general have sued the US government to overturn the constitutionality of ACA’s individual mandate, since the penalty connected to it was already repealed by Congress as part of tax law changes earlier this year.
In addition,Texas v. United Stateschallenges ACA’s guarantees that insurers cannot turn down, or charge more, to individuals with preexisting conditions for their insurance coverage. On June 7, the Trump administration’s US Department of Justice filed a brief in support of the lawsuit, laying out reasons why DOJ wouldnotdefend the ACA’s preexisting conditions guarantees.
However, several public-health groups, unions and insurers have filed briefs opposing the lawsuit, and many cited the Urban Institute’s estimate that 17.1 million people would lose their insurance coverage in 2019 if the 20 state attorneys were successful, and the crucial “guaranteed coverage” portions of the ACA were erased as a result.
One of the groups that filed a brief in support of the US government, and in keeping the ACA intact, is Economic Scholars, which includes senior economists and health-policy experts from Harvard University (David Cutler, John E. McDonough and former Congressional Budget Office Director Douglas Elmendorf), Blumberg and Hollahan of the Urban Institute, and Georgetown University McCourt School of Public Policy Professor Judith Feder, among others.
They noted that the injunction the plaintiffs are seeking inTexas v. United States– aimed at invalidating all of the ACA – “would cause millions of people to lose insurance” and eliminate “guaranteed issue provisions that prevent insurers from charging higher premiums for customers with preexisting conditions.”
Economic Scholars added: “Without those provisions, individuals with preexisting conditions would likely be unable to obtain insurance at any price, and thus would not be eligible for the premium tax cut subsidies the ACA provides.”
Kavanaugh's History Of Rulings In Opposition To ACA
Judge Kavanaugh’s history of rulings in opposition to ACA can be tracked in three separate cases. In the US Circuit Court of Appeals (DC Circuit) court caseSeven-Sky v. Holder, for example, the Supreme Court nominee ruled against the court’s decision to uphold the ACA. In his dissent in the 2011 case, Kavanaugh said there is a limit on Congress’ power to order people to buy a product like health insurance.
He also dissented in a 2015 decision by the circuit court, Sissel v. Department of Health and Human Services, which challenged whether the ACA’s provisions on raising revenues – the penalties applied under the individual mandate provision – were legitimate. Challengers of Obamacare in the case said because the act originated in the Senate, rather than the House, the chamber of Congress where tax and revenue-raising laws must arise, it was invalid. The majority of the DC Circuit Court disagreed and ruled that the Affordable Care Act neednotto have originated in the Senate because it was not designed as a revenue-raising bill.
Kavanaugh argued in his dissent that the ACA was indeed a revenue-raising bill, because provisions of the law (such as the 2.3% excise tax on medical devices) imposed taxes.
The Trump nominee also dissented in a third DC Circuit Court case in 2015,Priests for Life v. Department of Health and Human Services. In the case, for which the DC court declined a full review, the religious group Priests for Life objected to taking part in the process for employers who wanted to opt out of ACA’s contraceptive mandate. They argued that filling out the paperwork to be conducted by groups that were eligible for exemptions from the birth control mandate “burdened” their beliefs.
Kavanaugh agreed with the Priests’ group, writing that judges should not be in a position to question the sincerity of the religious group’s beliefs, writing, “To plaintiffs, the acting of submitting this [exemption] form would, in their religious judgment, impermissibly facilitate delivery of contraceptive and abortifacient coverage.”
Kavanaugh’s Confirmation Delayed By National Archives Records Release
Senate Republican leaders initially believed the Supreme Court nominee’s confirmation could be carried out in September, so Kavanaugh could be confirmed well before the national Nov. 6 election.
To conduct a thorough review of his career, GOP leaders requested that the National Archives release thousands of pages of records on the judge’s previous government work. However, the Archives replied on Aug. 2 that a review of the records prior to their release will last through October, so the confirmation process could be delayed until then. Congressional leaders wanted to see documents from Judge Kavanaugh’s time working for former President George Bush counsel’s office from 2001 to 2003, among other papers.
From the editors of The Gray Sheet