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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

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The Senate voted 93-2 on Friday to confirm retired Gen. Lloyd Austin as secretary of defense. Sens. Mike Lee (R-Utah) and Josh Hawley (R-Mo.) were the sole "no" votes.

Why it matters: Austin is the first Black American to lead the Pentagon and President Biden's second Cabinet nominee to be confirmed.

House will transmit article of impeachment to Senate on Monday, Schumer says

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Senate Majority Leader Chuck Schumer (D-N.Y.) announced that the House will deliver the article of impeachment against former President Trump for "incitement of insurrection" on Monday.

Why it matters: The Senate is required to begin the impeachment trial at 1pm the day after the article is transmitted.

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Private equity bets on delayed tax reform in Biden administration

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In normal times, private equity would be nervous about Democratic Party control of both the White House and Congress. But in pandemic-consumed 2021, the industry seems sanguine.

Driving the news: Industry executives and lobbyists paid very close attention to Treasury Secretary nominee Janet Yellen's confirmation hearings this week, and came away convinced that tax reform isn't on the near-term agenda.