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Senators’ Position On ACA Lawsuit Is Crystal Clear

Nan Aron
Nan Aron
Mar 13 · 4 min read
Photo Credit: Meg Simons, Alliance for Justice Action Campaign

In the recent Hill article “Vulnerable Republicans dodge questions on support for ObamaCare lawsuit,” Republican senators dodged questions about their positions on the Trump administration’s lawsuit that seeks to have the courts declare the Affordable Care Act unconstitutional in its entirety. Essential health care coverage for millions of people, including those with preexisting conditions, hangs in the balance. Whether they answer the question or not, no entity is more responsible for this potential catastrophe than the Republican-led Senate.

It is clear that senators facing tough reelections like Joni Ernst, Martha McSally, Thom Tillis, Steve Daines, and Cory Gardner are refusing to offer their constituents any semblance of a real answer about where they stand on this life-and-death issue. When asked for comment, Ernst replied “I’m not saying whether I support it or not.” McSally demurred because she couldn’t possibly comment on a “judicial proceeding.” Tillis and Daines tried to change the subject. And Gardner simply never responded to a request for comment.

While this stunning lack of candor about the most important issue to Americans is maddening, these Republican senators don’t need to answer the question. Their voting records on judicial nominees speak for themselves. Donald Trump explicitly promised to appoint anti-health care judges, stating, “My judicial appointments will do the right thing unlike Bush’s appointee John Roberts on Obamacare.” It is unreasonable for Republican senators to feign surprise that Trump has done exactly that, and every Republican senator, including those mentioned in the article, has aided and abetted the president in his takeover of the federal courts — voting to confirm nearly every one of his unqualified and extremist nominees who openly oppose the ACA.

For example, Ernst, McSally, Tillis, Daines, and Gardner all voted to confirm Chad Readler to the Sixth Circuit Court of Appeals. Readler himself filed the brief on behalf of Trump’s Department of Justice in this very case! In that brief, Readler argued that the entire ACA is unconstitutional. Three other DOJ lawyers refused to sign this brief, and one veteran lawyer even resigned in protest. But Readler was happy to sign his name to it, and these five Republican senators were happy to confirm him to a lifetime seat on the federal bench, where he can continue using his power to dismantle health care for millions of Americans.

Senator Susan Collins actually said she opposes the lawsuit. Why then, did Collins (along with Ernst, Tillis, Daines, and Gardner) vote to confirm Brett Kavanaugh to the Supreme Court? While a D.C. Circuit Court judge, Kavanaugh dissented from two rulings upholding the ACA. One of Kavanaugh’s clerks, Sarah Pitlyk (now a judge whose confirmation was supported by nearly every Republican senator), said of Kavanaugh, “No other contender on President Trump’s list is on record so vigorously criticizing the ACA.”

Another Kavanaugh clerk, Justin Walker, lauded Kavanaugh for writing the “roadmap” for ACA repeal in the courts. Walker, who was rated “not qualified” by the American Bar Association, is on record calling the Supreme Court’s decision to uphold the ACA “indefensible” and praising Kavanaugh’s “thorough and principled takedown” of the law. Senator Collins apparently did not find that position disqualifying, joining all the other Republican senators recently in voting to confirm Walker to a lifetime judicial seat.

Collins, Ernst, Gardner, Daines, and Tillis also voted to confirm Greg Katsas to the D.C. Circuit, who was the lead lawyer in a previous ACA challenge. They also supported Leonard Grasz, now a judge on the Eighth Circuit, who claimed that because Chief Justice Roberts did not strike down the ACA, “[t]he Roberts opinion has itself placed the legitimacy of the court, as well as our freedom as Americans, in great jeopardy.” Additionally, they all voted to confirm Andrew Oldham, who was lead counsel in an effort by 20 states to strike down the ACA as unconstitutional.

These Republican senators are avoiding the tough questions about the ACA because they know they’re on the wrong side of this issue. They are woefully complicit in the Trump administration’s attacks on the health care of millions of Americans. None of the senators who have allowed Trump to pack the courts with these ideologues can now purport to care about protecting health care coverage. They can throw up their hands and pretend that they have no say over what happens in the courts, but any senator who voted to confirm judges like Readler, Kavanaugh, and many others is responsible for the precarious fate of the ACA.

The issue of anti-ACA judges remains a live one as Cory Wilson’s nomination to the Southern District of Mississippi is pending in the Senate right now. Wilson called the ACA “illegitimate” and “perverse” and encouraged the Supreme Court to invalidate it, stating, “For the sake of the Constitution, I hope the Court strikes down the law.” For voters wondering how their Republican senators feel about this lawsuit, it will be illuminating to see if any one of them decides to vote against his confirmation.

Make no mistake about this lawsuit pending in front of the Supreme Court — this is the Republican health care plan. After failing to repeal the ACA through Congress, Trump and Senate Republicans have instead packed the courts with extremists and brought this lawsuit before the courts, delegating their dirty work to unelected judges who will never have to face electoral consequences. Any claim that these Senators care about protecting people with pre-existing conditions is contradicted by these votes.

It is no surprise that health care remains the top issue for voters heading into the 2020 elections. This is literally a matter of life and death for many families across America. What is surprising is that Republican senators don’t have the courage to tell their voters just how little they care about their health and safety. These Republican senators must be held responsible for their role in this assault on health care.

Nan Aron

Written by

Nan Aron

Fighting for fair courts. President of Alliance for Justice, Alliance for Justice Action Campaign, and Bolder Advocacy. Recycling enthusiast with a green thumb.

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