When President Trump announced his nomination of Brett Kavanaugh to replace retiring justice Anthony Kennedy on July 9, Senator Dean Heller of Nevada was quick to endorse the choice.
Heller joined Trump at the White House for the official announcement, and after meeting with Kavanaugh at his Senate office, Heller announced he was all-in. Fending off concern that the nominee was a right-wing ideologue, Heller insisted Kavanaugh was a “mainstream jurist.”
Kavanaugh, a judge on the D.C. Circuit Court of Appeals, is anything but “mainstream.” His legal career strongly suggests that on issues from abortion rights to public education to workers’ rights, the conservative jurist, if confirmed, would be far to the right of where the majority of Americans stand. If this was really in doubt, Kavanaugh wouldn’t have been vetted and approved by the decidedly non-mainstream, right wing Heritage Foundation.
Then again, ignoring the wishes of his constituents on key issues is something Dean Heller understands. Heller’s audacious backpedaling on protecting tenets of the Affordable Care Act (ACA) in 2017 has dogged the first-term senator, who is locked in a tight race for reelection in this year’s mid-terms.
In June 2017, Heller stood alongside Governor Brain Sandoval to announce his opposition to GOP plans to repeal the ACA, saying he could not support a measure that takes health insurance away from hundreds of thousands of Nevadans (and tens of millions of Americans). Under pressure from President Trump and Senate colleagues, and attack ads against him from a pro-Trump Super PAC, Heller soon reversed course, ultimately choosing to side with his party in its ultimately unsuccessful effort to dismantle the law. Heller has been vilified across the state for his twists and turns.
“No politician from our state has ever been more dishonest about their intentions, more misleading about their position or more disingenuous to their constituents,” said Rep. Jacky Rosen, Heller’s opponent in the November election.
Republican senators are expected to revisit ACA repeal in 2019. If they are to succeed, the GOP will have to add two or more seats to their shaky one-seat majority after the mid-term elections, so holding onto Heller’s seat is critical.
And so is confirming Brett Kavanaugh to the Supreme Court.
Access to health care has been under assault in the courts-ever since the passage of the ACA in 2010. Opponents of the law continue to file lawsuits challenging its provisions. The most significant case, Texas v. United States, goes further than any previous legal action in shredding the health care law and could be on the Supreme Court’s docket in the next term. Twenty states, led by Texas, filed a suit contending that without the individual mandate – which was repealed by Congress in the 2017 tax bill – the ACA is in its entirety unconstitutional.
Yesterday I met with Judge Brett Kavanaugh, a mainstream jurist I found to be dedicated to defending our Constitution. pic.twitter.com/UtLF9vZFGi
— Dean Heller (@DeanHeller) July 21, 2018
If successful, the suit would dismantle every provision of the law – including the provision that bans insurance companies from denying coverage to people with pre-existing conditions. The U.S. Justice Department has refused to defend the ACA in court, instead agreeing that this and other key provisions are unconstitutional.
There are currently 130 million Americans with pre-existing conditions and protecting these individuals is universally popular. In a Kaiser Family Foundation poll conducted in June, 76 percent of respondents said that it’s very important for protections for preexisting conditions to remain, while an additional 15 percent say it’s somewhat important. They know that guaranteeing coverage to people with pre-existing conditions has saved lives and kept families from financial ruin.
If Texas v. United States makes it to the Supreme Court, Brett Kavanaugh could be the deciding vote on whether or not preexisting condition protections should continue. In his 2011 dissent in Seven-Sky v. Holder, Kavanaugh called the ACA “unprecedented” in US history and warned that upholding it would “usher in a significant expansion of congressional authority with no obvious principled limit.”
Kavanaugh also wrote that “The President might not enforce the individual mandate provision if the president concludes that enforcing it would be unconstitutional.”
His reasoning? “[U]nder the Constitution, the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional, even if a court has held or would hold the statute constitutional,” Kavanaugh wrote.
And in a speech to the Heritage Foundation in 2017, Kavanaugh made it very clear that he thinks the Supreme Court erred in 2012 when it voted to uphold the ACA’s insurance mandate.
Kavanaugh’s views, said NEA President Lily Eskelsen García, reveal “a world where affordable, quality health care is reserved for the few who can afford it. These ideologies have been at the core of the Trump administration’s playbook, and the majority of Americans continue to reject them.”
Brad Woodshouse, executive director of Protect Our Care, predicts that a vote to confirm Kavanaugh could be the final straw, the one that closes the door on access to affordable health care for millions of Americans.
“President Trump had at least two litmus tests for Judge Kavanaugh to become his nominee for the Supreme Court: overturn Roe v. Wade and overturn America’s health care, by gutting protections for those with pre-existing conditions,” Woodhouse said. “Such a radical shift on these issues would be disastrous for women’s health and would put the health care of 130 million Americans with pre-existing conditions at risk.”
Polls show that health care is voters’ top concern as the House and Senate mid-term elections approach. Americans want the ACA improved not destroyed and are steadfastly opposed to ending pre-exiting condition protections. Instead, Dean Heller, like so many of his Senate colleagues, has chosen to cozy up to President Trump and his extreme agenda – and by extension Brett Kavanaugh.
At a private meeting with a Republican group in April, Heller doubled down on dismantling the health care law. “I think at the end of the day we end up with 53, 54 seats,” Heller said. “If we can do that, then we can repeal and replace and change the ACA as we know it today.”
“His dream, and that of his party, of having another chance to gut protections for pre-existing conditions should be every Nevadan’s worst nightmare,” said Leslie Dach, chair of Protect our Care.