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Sen. Joe Manchin (Photo: Chip Somodevilla/Getty Images)

Democrats are putting the Affordable Care Act front and center in their campaign against Supreme Court nominee Brett Kavanaugh, hoping the same coalition that helped defeat last year's ACA repeal bills can also sink a Supreme Court pick.

The catch: It's definitely possible that a Justice Kavanaugh would be able to cast the deciding vote to strike down protections for pre-existing conditions. But a lot of stars would have to align to get there.

The issue: Democrats' argument hinges on a lawsuit from Republican attorneys general, which argues that because the Affordable Care Act's individual mandate is now toothless, it has become unconstitutional. The Justice Department agrees, and wants the court to also strike the law's protections for people with pre-existing conditions.

  • The "concern is that that court battle will work its way up through district courts in Texas to courts of appeal and eventually to the Supreme Court. And therein lies the threat," Sen. Tom Carper said.

How it would happen:

  • The Supreme Court would have to agree to hear the case — which it often doesn't do if it's OK with a lower court's ruling or simply wants to avoid an issue.
  • Kavanaugh would have to vote against the mandate (an opportunity he passed up last time) and Chief Justice John Roberts, who cast the deciding vote to uphold the mandate in 2012, would have to reverse course to strike it down now.
  • “Of course the case has to make its way to the Supreme Court, of course Roberts would have to flip, but I don’t think that’s a reach at all," a Democratic aide said.

Threat level: All of that is possible, but some experts consider it a long shot.

  • “I have a very hard time seeing five judges who would buy the arguments that Texas is making," said Tim Jost, a former Washington & Lee law professor and staunch ACA ally. “I have a feeling that Roberts is not eager to rake another Affordable Care Act case — but it’s possible, and theres the potential there to do a great deal of damage."

The other side: “It's in the realm of possibility," that this lawsuit would ultimately succeed. "But I think the consequences of that decision are somewhat overblown," said Josh Blackman, a professor at South Texas College of Law and an ACA critic.

  • He thinks the stakes are lower this time around, because the mandate has now been shown to be somewhat ineffective, and that that could bring Roberts on board.

What's next: This case is still more than a year away from the Supreme Court. For now, this is about the political fight. And Senate Democratic Leader Chuck Schumer has chosen to focus on an issue that has unified the caucus in the past.

  • "It’s big. Really big. And it should be big," Sen. Joe Manchin said. "Basically these people here, for the first time, have a chance to live a better quality of life, to live a longer life and to have health care assurances.”

Republicans reject the argument as a long-shot hypothetical.

  • "That is fantasy. It’s ridiculous. The judge is going to decide a case on [a] case-by-case basis. Who knows whether that issue will ever come up in front of the Supreme Court?" Majority Whip John Cornyn said.
  • Sen. Dean Heller, the most vulnerable GOP senator, said the Democrats' messaging is “all hyperbole.”

Go deeper

Updated 15 mins ago - Politics & Policy

Omicron dashboard

Illustration: Brendan Lynch/Axios

  1. Health: Transplants rebound from COVID lull — CDC director says COVID-19 messaging should have been clearer — Concerns grow over CDC's isolation guidelines.
  2. Vaccines: Kids' COVID vaccination rates are particularly low in rural America — America's vaccination drive runs out of gas.
  3. Politics: Joint Chiefs chair Gen. Mark Milley tests positive for COVID-19 — Vivek Murthy calls SCOTUS vaccine mandate block "a setback for public health."
  4. States: America struggles to keep schools open — Youngkin ends mandates for masks in schools and COVID vaccinations for state workers.
  5. World: Greece imposes vaccine mandate for people 60 and older — French parliament passes COVID vaccine passport legislation.
  6. Variant tracker

Mayors feel powerless to reduce homelessness

Expand chart
Recreated from 2021 Menino Survey of Mayors; Chart: Jacque Schrag/Axios

America's mayors know their constituents hold them accountable for homelessness, but many don't feel they have the tools or power to fix things, a brand new survey says.

Why it matters: While homelessness has become more acute during the pandemic, city leaders say they lack the money, staff or political support needed to make a meaningful difference.

Ina Fried, author of Login
3 hours ago - Technology

Microsoft to buy Activision Blizzard

Microsoft

Microsoft announced Tuesday it plans to acquire video game giant Activision Blizzard for $68.7 billion in cash.

Why it matters: The move comes as Activision Blizzard has faced a wave of accusations of workplace harassment.