Obama Reportedly Considering GOP Governor Who Called Obamacare ‘Unconstitutional’ For Supreme Court

President Obama greets Nevada Gov. Brian Sandoval (R) CREDIT: AP PHOTO/CHASE STEVENS

The Washington Post reports that the White House is vetting Brian Sandoval, the Republican governor of Nevada who once labeled President Obama’s signature health law “unconstitutional,” as a possible nominee for the Supreme Court vacancy left by the death of Justice Antonin Scalia. Sandoval previously served as a federal district judge, the lowest rank of judges who receive lifetime appointments, for just under four years. He resigned to run for governor in 2009.

Though the Post claims that “Sandoval is increasingly viewed by some key Democrats as perhaps the only nominee President Obama could select who would be able to break a Republican blockade in the Senate,” the second-ranking Senate Republican poured cold water on this idea almost immediately after the Post’s report went live. According to Politico’s Burgess Everett, Senate Majority Whip John Cornyn (R-TX) “says [it] doesn’t make a difference if Sandoval is the nominee.”

The fact that Obama would consider naming Sandoval is surprising, given the governor’s past statements on the Affordable Care Act. In his first State of the State Address in 2011, Sandoval said that “many aspects of the law are unconstitutional” and he pledged to “continue to fight to have them overturned.” He later personally signed briefs filed in the Supreme Court arguing against the law’s constitutionality and claiming that the Supreme Court “should hold the ACA invalid in its entirety.”

It’s worth noting that, after losing this case, Sandoval did agree to implement provisions of the law, such as its Medicaid expansion. Nevertheless, if Sandoval’s position had prevailed in the Supreme Court, Obamacare would have completely ceased to exist.

Sandoval’s record also creates a fair amount of uncertainty regarding how he would rule on several landmark issues currently before the Supreme Court, including whether to defund public sector unions, and the fate of President Obama’s plans to fight climate change and temporarily permit undocumented immigrants to remain in the country.

The governor’s record on unions is relatively moderate compared to, say, Wisconsin Gov. Scott Walker (R), but Sandoval has still clashed with organized labor. In his 2015 State of the State address, Sandoval called for “collective bargaining reform,” and state lawmakers responded with a proposal opponents labeled “union Armageddon.” The governor eventually signed more moderate legislation that the state’s largest public sector union labeled “reasonable.” Sandoval, however, also signed a law exempting schools from paying construction workers a prevailing wage, despite an ad campaign by the AFL-CIO urging him to veto the bill.

At the very least, this record is sufficiently mixed that it is unclear whether Sandoval would provide a key fifth vote to the plaintiffs in Friedrichs v. California Teachers Association an effort to cut off much of public sector unions’ funding.

On the environment, Sandoval’s record is similarly mixed. He signed a law that, according to Clean Energy Project director Jennifer Taylor, “effectively eliminat[ed] coal-fired power plants from Nevada’s energy mix.” Yet the Public Utilities Commission of Nevada, led by three Sandoval appointees, also reduced incentives for solar power use in the state, effectively raising energy bills for people who use solar power.

The Supreme Court, meanwhile, is widely expected to take up a challenge to President Obama’s Clean Power Plan — the president’s most ambitious action to fight climate change — in its next term. Sandoval’s record on coal suggests that he is unlikely to be moved by the strident rhetoric many energy companies have used in their legal briefs, but Sandoval’s vote — which is likely to be dispositive if he is confirmed to the Supreme Court — is less certain than other potential nominees.

The governor, meanwhile, may be especially likely to strike down Obama administration policies that would temporarily permit nearly 5 million undocumented immigrants to work and to continue to live in this country. Though Sandoval supported a bipartisan immigration reform bill that passed the U.S. Senate in 2013, Sandoval “said Obama overstepped his authority by going around Congress to protect up to 5 million undocumented immigrants from deportation,” according to the Las Vegas Review-Journal.

To be clear, Sandoval also opposed Nevada Attorney General Adam Laxalt’s (R) decision to join a multi-state lawsuit challenging these immigration policies. Nevertheless, the question of whether Obama “overstepped his authority” is directly before the Supreme Court right now. If Sandoval joins the Court, he could have the deciding vote in this case as well.

Governor Sandoval’s record, in other words, is relatively moderate compared to most of his fellow Republican governors, and his record on some key issues now before the Court is genuinely enigmatic. At the same time, however, Sandoval has taken hard line positions against some of the president’s signature achievements, such as when he personally asked the Supreme Court to repeal the Affordable Care Act in its entirety.


In 2012, Sandoval also came out in support of voter ID, a controversial voting law believed to disproportionately disenfranchise groups that prefer Democrats to Republicans. In a statement to reporter Jon Ralston, Sandoval said “I support a voter ID law in Nevada.” and added that he thinks “the idea of a voter ID law is a good one and Nevada should make it as simple as possible for voters to show ID and vote.”


Sandoval released a statement indicating that he does not wish to be considered for the nomination: