Banking on a gambit that helped push him over the finish line with ultra-conservative voters in 2016, Donald Trump has released an updated list of individuals he would nominate to the Supreme Court if reelected — and you don’t have to look far to see the existential threat they pose to the future of health care and the Affordable Care Act.
One of the most troubling features about the judges and justices President Trump has already put on the bench, with the help of Senate Republicans, has been their strong opposition to access to health care and the ACA. This is part and parcel of the Republican strategy to dismember the law in the courts, having failed to strike it down legislatively. Trump’s new list of 20 possible Supreme Court nominees represents a doubling-down on this strategy. Many of his new short-listers have clear records of opposition to the ACA and are all too likely to try to strike down the law if appointed to the Supreme Court.
Start with the three most prominent new names: Sens. Ted Cruz (R-Texas), Josh Hawley (R-Mo.), and Tom Cotton (R-Ark.). Each clearly meets the anti-ACA litmus test announced by Trump during his initial campaign for office. Each has not only voted against the ACA, each has also supported legal arguments that the ACA should be repealed or struck down as unconstitutional, including in a lawsuit filed by Hawley when he was Missouri’s attorney general. Putting one or more of them on the Court could translate their radical views into reality.
Trump also included several prominent conservative Supreme Court advocates on his new list, including Paul Clement and his own former Solicitor General Noel Francisco. Each of them has argued to the Supreme Court that the ACA is unconstitutional, including an argument by Clement rejected 5-4 by the Court in 2012 and a brief filed by Francisco when he was still SG in June. With either of these two on the Court helping to decide the issue, the Court could well reverse its 2012 ruling and strike down the ACA.
A number of the new Trump appeals court judges on the list also have troubling records on health care and the ACA. For example, in a dissent arguing that a city ordinance limiting the size of campaign contributions was unconstitutional, Fifth Circuit judge James Ho took an unnecessary “swipe” at the Court’s 2012 decision upholding the ACA, suggesting that it disagreed with Ho’s view of this law.
And just two months before he was placed on Trump’s revised shortlist, Trump D.C. Circuit judge Greg Katsas cast the deciding vote to uphold a Trump rule that seriously undermines the ACA by letting big insurance companies sell policies that exclude preexisting conditions and older Americans. As the dissenting judge put it, the Trump rule “flies in the face” of the ACA as enacted by Congress.
Trump and Senate Republicans have failed in their efforts to repeal the ACA in Congress, in light of the strong support from the American people for health care access. So instead, they have turned to appointing judges who they hope will mandate their anti-ACA agenda in the courts. Adding one of these new Trump short-listers to the Supreme Court, which is considering the constitutionality of the ACA this fall, would further endanger the law and health care access, and possibly put an end to it forever.
Trump’s attempt to fire up his base by releasing his new list should instead further encourage all Americans to make sure he does not get a second term. Especially in the middle of a worldwide pandemic, gutting Americans’ access to health care is simply unconscionable, and this new list is a transparent attempt to do so.
Elliot Mincberg is a senior fellow at People For the American Way and a former chief oversight counsel for the House Judiciary Committee.