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Our D.C. Bureau Dems grill Kavanaugh on Obamacare

September 7, 2018

WASHINGTON — In his second round of questioning appeals court Jude Brett Kavanaugh, Sen. Richard Blumenthal used the case of Ridgefield’s Conner Curran to examine the Supreme Court nominee’s views of the Affordable Care Act — Obamacare — and President Trump’s power to not enforce it even though it remains the law of the land.

Curran, now 7, suffers from Duchenne muscular dystrophy, a debilitating disorder that could cost his parents up to $54,000 a year to treat if they did not have health insurance.

On the third day of confirmation hearings before the Senate Judiciary Committee, Blumenthal, D-Conn., displayed Conner’s picture on an easel and asked Kavanaugh: “Should Conner’s family be afraid?”

Kavanaugh, 53, picked by Trump off a list of reliable conservative jurists, insisted he understood the individual consequences of decisions that judges make on health care and a multitude of other issues.

“I understand the real-world impact of the Affordable Care Act,” Kavanaugh told Blumenthal.

Blumenthal based his questions on Kavanaugh’s history as a staff lawyer in the White House of President George. W Bush, where he helped formulate signing statements designed to help the president lay out how he would enforce the legislation he was signing into law.

In 2013, Kavanaugh told an audience that presidents may reserve the right to state that certain provisions of laws are unconstitutional and they will not follow them.

“That is a traditional exercise of power by the presidents,” Kavanaugh said at the time.

Kavanaugh’s views of presidential power have spawned a variety of questions from senators of both parties during three days of confirmation hearings, particularly on his views of Trump’s ability to resist subpoenas and grand jury testimony as legal clouds continue to gather around him.

But the issue of presidential power has also proved important in the continuing battle over Obamacare, the main legislative achievement of Democrats and former President Obama that Republicans have attempted to scuttle.

In June, the Trump administration announced it would not defend ACA provisions requiring health insurance providers to cover patients with pre-existing conditions. The decision came in a filing in a case in which Texas and 19 other states are seeking to have Obamacare declared unconstitutional. Arguments in the case began this week in a federal courtroom in Fort Worth.

Blumenthal and other Democrats including Sen. Chris Murphy of Connecticut have countered that undercutting the pre-existing-condition requirement could make insurance unaffordable for the family of Conner Curran, as well as for pregnant women and those who suffer from diabetes, high-blood pressure, or cancer.

In Connecticut, about 522,000 people have pre-existing conditions, according to the non-partisan Kaiser Family Foundation.

Late Wednesday, Murphy said confirmation of Kavanaugh would cloud the future of the Affordable Care Act.

“Make no mistake, this is a careful, coordinated, judicial assault on (Obamacare’s) protections for people with pre-existing conditions,” Murphy said at a news conference.

Murphy accused the Trump administration of attempting to scuttle the ACA after failing to do so through congressional action.

In nominating Kavanaugh, Trump is attempting to prod the court to do “what he could not do here in Congress,” Murphy said.

The Supreme Court in 2012 upheld the constitutionality of the Affordable Care Act, finding it was a legitimate application of the power of Congress to levy taxes.

Kavanaugh’s own views of Obamacare are contradictory. In a 2011 case in which the appeals court upheld it, Kavanaugh dissented on technical grounds having to do with taxes.

In a second case in 2015, he voted to rehear a failed challenge to the ACA based on the Constitution’s stipulation that all revenue-raising legislation must originate in the House. But Kavanaugh wrote that he agreed that the ACA could not be challenged under the Constitution’s “origination” clause.

dan@hearstdc.com

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