Some opponents of Judge Kavanaugh’s confirmation have sought to make his confirmation a referendum on the Affordable Care Act (ACA), and in particular the law’s regulations requiring the provision of health-insurance coverage without regard for pre-existing conditions. The implicit premise is that, as a Supreme Court justice, Brett Kavanaugh would pose a threat to these portions of the law.
Texas v. Azar is the focal point of the ACA-based attack on Judge Kavanaugh. Yet as I explained in this VC post, there is little reason to think this case will reach the Supreme Court, and even less reason to think that a Justice Kavanaugh would be a vote to strike down the relevant ACA provisions. The underlying legal theory in Texas v. Azar is quite weak, there’s little reason to believe Justice Kavanaugh’s vote would be decisive (given the Chief Justice’s prior ACA opinions), and the remedy sought is one Judge Kavanaugh’s record suggests he would be unlikely to endorse.