Affordable Care Act Could Play Role in Supreme Court Confirmation

Drew Thies

The 2010 health care law could take center stage in the Senate debate over the confirmation of President Trump’s nominee to the Supreme Court, Brett Kavanaugh.

If the administration gets moderate Democrats to support Kavanaugh, they will likely have to convince them that the pick will not cause significant harm to the Affordable Care Act (ACA).

The Democratic Senator from West Virginia, Joe Manchin, already expressed concerns about Kavanaugh’s position on the legality of certain parts of the ACA. In a speech given at the Heritage Foundation last year, Kavanaugh said he thought the Supreme Court was wrong to uphold the ACA’s mandate as constitutional.

Sen. Manchin and two other Democratic Senators, Heidi Heitkamp (N.D), and Joe Donnelly (Ind.), joined their Republican colleagues in the Senate to confirm Gorsuch, but the upcoming election and recent fight over the repeal of the Affordable Care Act could change calculations for the upcoming confirmation debate.

Republicans have a slim, 51-49 majority in the Senate. While Senate rules were changed last year to allow for the confirmation of Neil Gorsuch on a simple 50-vote majority, Senator John McCain is in Arizona and not currently participating in Senate votes due to his ongoing cancer treatment. Without support from Senate Democrats, they will have to get every other Republican to support the Kavanaugh’s nomination.

Kavanaugh’s nomination is to replace Justice Anthony Kennedy, who announced earlier this month he will retire effective July 31^st. Justice Kennedy is often portrayed as the swing vote on the court, though it was Chief Justice John Roberts, not Kennedy, who twice provided the decisive swing vote on recent court decisions relating to the ACA.