Trump’s new Supreme Court shortlist has several ACA opponents

President Donald Trump on Wednesday added 20 names to his shortlist of potential Supreme Court nominees, including some fiery opponents of the Affordable Care Act.

The Supreme Court next term will hear a high-stakes case in which Republican state attorneys general and the Trump administration are arguing that the Affordable Care Act should be struck down in its entirety. With the court relatively balanced between justices who generally vote conservative or liberal, the next vacancy will be crucial in determining the court’s future.

In announcing the new additions to his shortlist, Trump put additional pressure on Democratic presidential nominee Joe Biden to release his own list of potential nominees. Biden has suggested that he would nominate a black woman to the high court if elected.

Left-leaning advocacy group Demand Justice’s Chief Counsel Christopher Kang criticized the Trump administration for continuing to support the ACA lawsuit that could strip millions of healthcare during a pandemic.

“This list includes many lawyers with anti-healthcare records, and both Trump and Senate Republicans should have to answer for why they are continuing to try to take away health care from millions in the middle of a pandemic,” Kang said.

Here are a few of the 20 additions to Trump’s shortlist who have particularly prominent views on the Affordable Care Act. Combined with his prior shortlist, Trump has floated more than 40 names of potential nominees.

  • Sen. Ted Cruz (R-Texas) was one of several conservative senators who led an effort to shut down the federal government in 2013. Cruz and others wanted to defund the Affordable Care Act, but ultimately caved and allowed the government to reopen after 16 days of stalemate. Cruz has cast several votes to repeal the ACA. “Since I was first elected to the U.S. Senate in 2013, I have led the fight to repeal every word of Obamacare,” Cruz wrote in a Modern Healthcare opinion piece published in March.
  • Sen. Tom Cotton (R-Ark.) helped lead the effort to zero out the ACA’s individual mandate in the GOP’s tax reform law. That move has become the basis for the ongoing legal battle over the ACA that the Supreme Court will hear this fall. Cotton has also cast several votes to repeal the ACA.
  • Sen. Josh Hawley (R-Mo.) joined other GOP state officials to bring the most recent lawsuit that could strike down the ACA during his time as Missouri’s attorney general. In a 2018 interview before his election, Hawley said he would vote to repeal and replace the ACA. “I think it’s absolutely vital that we get rid of the failures of Obamacare, we bring down costs, we protect people with pre-existing conditions in the law with a mandate,” Hawley told “Meet the Press.”
  • Kentucky Attorney General Daniel Cameron in May 2019 told the Louisville
  • Courier-Journal
  • that he opposes the ACA’s individual mandate and supports legal challenges to the ACA, but would wait to sign on to efforts to strike down the law until protections for pre-existing conditions were established. Kentucky is still one of the states defending the ACA in California v. Texas.
  • Former Solicitor General Noel Francisco wrote the Trump administration’s brief to the Supreme Court in June reaffirming its commitment to calling for the law to be struck down in its entirety, with no mention of the COVID-19 pandemic. He argued that the individual mandate cannot be separated from other provisions of the ACA, so “it necessarily follows that the rest of the ACA must also fall.”
  • Gregory Katsas, a circuit judge on the U.S. Court of Appeals for the District of Columbia Circuit, was one of the attorneys who argued that the Supreme Court should consider arguments against the constitutionality of the ACA in the 2012 case National Federation of Independent Business v. Sebelius.

Others named on the shortlist had less clear records and experience on the issue of the ACA’s legality.

Former Solicitor General and Kirkland & Ellis Partner Paul Clement made comments at a Federalist Society panel in May 2019 that were apparently critical of the Trump administration’s decision not to defend the Affordable Care Act, saying there could be “costs to the system” if the Justice Department doesn’t defend standing law, as is traditional.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in December decided that the ACA’s zeroed out individual mandate was unconstitutional, and punted larger severability questions back to a lower court. Fifth Circuit Judge James Ho, who was named on Trump’s shortlist, recused himself from a vote on whether to rehear the case en banc and did not disclose why.

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