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Democrats Overstate Kavanaugh’s Writings on the Affordable Care Act

Democrats Overstate Kavanaugh’s Writings on the Affordable Care Act


But those comments, too, are open to interpretation.

In the speech, Judge Kavanaugh noted that the Supreme Court case that upheld the health law, National Federation of Independent Business v. Sebelius, was settled through the principle of “constitutional avoidance,” in which courts avoid ruling on constitutional issues if the case can be resolved based on nonconstitutional issues.

Below is a key passage from his speech:

“For all that has been written about the N.F.I.B. case, the decision on the individual mandate turned not on the proper interpretation of the Constitution and not on the best interpretation of the statute. It turned entirely on how much room judges have to find ambiguity when invoking the constitutional avoidance canon. In my view, this is a very odd state of affairs. A case of extraordinary magnitude boils down to whether a key provision is clear or ambiguous, even though we have no real idea how much ambiguity is enough to begin with, nor how to ascertain what level of ambiguity exists in a particular statute.”

Mr. Bagley said he believed that Judge Kavanaugh was “making, frankly, an academic point” about how Chief Justice John G. Roberts Jr.’s frequent application of constitutional avoidance should be used more sparingly.

Both Mr. Bagley and Ms. Parmet said Democrats have legitimate reasons to be concerned that, if confirmed to the Supreme Court, Judge Kavanaugh would side with Trump administration efforts to water down the Affordable Care Act — particularly in cases about the contraception mandate, short-term health plans or payments to health insurers.

But the two professors said Judge Kavanaugh’s writings on the health law are more restrained than Democrats claim.

“Looking at his work as a whole, there are reasons for the Democrats to be concerned,” Ms. Parmet said, “but some of their specific points might be overstated.”

Sources: Seven-Sky v. Holder, The Federalist, Reason, Sissel v. Department of Health and Human Services, Congressional Research Service, C-Span, Wendy Parmet, Nicholas Bagley, representatives of Senators Chuck Schumer and Patty Murray, The New York Times



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