Kavanaugh’s Obamacare ruling: Part I
One of the reservations some conservatives have about Brett Kavanaugh is his ruling in the Obamacare case in 2011—not as a SCOTUS member, of course, but when Kavanaugh was on the D.C. Circuit and that court considered Obamacare’s constitutionality.
I agree that the SCOTUS Obamacare ruling was very poorly-reasoned. But until today—when I did some quick research—I was unfamiliar with Kavanaugh’s earlier role. The main article, by Christopher Jacobs, criticizing him from the conservative point of view is this one, published recently in the Federalist. And this article by Justin Walker, appearing at the same site, is the rebuttal—the defense of Kavanaugh.
Here’s an excerpt from the first article, the one by Jacobs:
Kavanaugh’s dissent [from the other two judges, who had ruled the mandate passed muster] arose from his belief that the 1867 Anti-Injunction Act precluded the court from deciding the merits of the individual mandate. The Anti-Injunction Act prevents individuals from challenging the validity of taxes in court until after they have paid them, which if applied to Obamacare’s mandate (which took effect in 2014) meant that a court challenge would not ripen until individuals had paid the mandate penalty on their taxes—i.e., in spring 2015, or nearly four years after the D.C. Circuit ruling.
Kavanaugh spends the better part of 50 pages—longer than the majority opinion justifying the mandate as constitutional—analyzing the Internal Revenue Code, and the Anti-Injunction Act, to support his belief that the mandate qualified as a tax under the act, forestalling any legal or constitutional challenge until after individuals had paid it…
The Supreme Court ultimately disagreed with Kavanaugh’s Anti-Injunction Act analysis. In 2012, Roberts ruled that Obamacare’s individual mandate functioned as a penalty for purposes of the Anti-Injunction Act—meaning the act did not apply, and the court could proceed to decide the merits of the underlying case—even as he concluded that the mandate functioned as a tax for purposes of determining its constitutionality
That sleight-of-hand by Roberts, by the way, was one of the most highly criticized aspects of the SCOTUS Obamacare ruling, and Kavanaugh had nothing to do with it.
To continue:
In Kavanaugh’s view, the mandate could fit “comfortably” within Congress’ constitutional powers. Even as he “do[es] not take a position her on whether the statute as currently written is justifiable,” Kavanaugh concludes that “the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight” (emphasis in the original).
Several pages thereafter, Kavanaugh continues to answer a question nobody asked him, giving the legislature instructions on how to remedy the in-his-view minor constitutional infirmity.
That is the objection—and the fact that SCOTUS used similar reasoning to Kavanaugh’s in the part of its decision that found the mandate to be a tax. But there were an enormous number of articles out there proclaiming much the same thing, and Roberts certainly didn’t have to look to Kavanaugh’s dissent to find reasons to declare the Obamacare mandate/penalty a tax when it suited his purposes to do so.
In fact, for what it’s worth, my own point of view is that it was a tax—an unequal and therefore unconstitutional capitation tax (you can find articles arguing the same point here and here, although to the best of my knowledge none of the appellate judges adopted that point of view).
In addition, Congress didn’t need Kavanaugh’s advice to have re-written the law so that it conformed better to the tax definition. Again, there was plenty of such advice out there without Kavanaugh. The problem there was political—they couldn’t change it because they had lost Congressional support for it. It barely squeaked by to begin with.
Here’s an excerpt from the article written by Walker in Kavanaugh’s defense:
In 2011, two judges on the D.C. Circuit upheld the Obamacare individual mandate under the Commerce Clause. Kavanaugh dissented from that decision, which was authored by the respected Judge Laurence Silberman, a Reagan appointee. Kavanaugh explained that Obamacare could be challenged as unconstitutional, but that a federal jurisdictional statute required such a challenge to be brought in the future.
Critically, and almost entirely absent from Jacobs’ account of the decision, Kavanaugh then called the individual mandate “a law that is unprecedented on the federal level in American history” and observed that upholding the individual mandate would be a “a jarring prospect” that would “usher in a significant expansion of congressional authority with no obvious principled limit.” The government’s argument for the mandate, Kavanaugh continued, would “ultimately extend as well to mandatory purchases of” many other products, a result that would have “extraordinary ramifications.”
Kavanaugh’s thorough and principled takedown of the mandate was indeed a roadmap for the Supreme Court—the Supreme Court dissenters, justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, who explained that the mandate violated the Constitution. I am very familiar with that opinion, because I served as Kennedy’s law clerk that term. I can tell you with certainty that the only justices following a roadmap from Brett Kavanaugh were the ones who said Obamacare was unconstitutional…
Kavanaugh was equally critical of the individual mandate under the weak Taxing Clause argument advanced by the government and catastrophically accepted by the Supreme Court. Kavanaugh explained that “no court to reach the merits has accepted the Government’s Taxing clause argument,” thereby showing his agreement with all the courts of appeals that correctly found the mandate unsustainable under that clause.
The Taxing Clause, he continued, “has not traditionally authorized a legal prohibition or mandate,” which Obamacare plainly contained. Contrary to Jacobs’ revisionist history, Kavanaugh’s Taxing Clause discussion is thus the opposite of a roadmap to upholding the statute under the Taxing Clause, as the Supreme Court ultimately did in its indefensible decision. Rather, Kavanaugh’s dismissal of the Taxing Clause argument is a roadmap to the conclusion reached by the dissenters—that the individual mandate is unconstitutional under the Taxing Clause.
To be sure, Kavanaugh suggested that a different statute without a mandate might pass muster under the Taxing Clause. But a statute without the mandate would not be Obamacare; it would be an entirely different law. Kavanaugh’s hypothetical discussion of a different statute without a mandate could not be a roadmap to upholding the statute with the mandate that was actually before the court.
A final point: Kavanaugh explained that waiting to resolve the challenge to Obamacare was not only required by law, but also the wise and judicially restrained course. There might never be a need to address the constitutionality of the mandate, he explained, because a future president (after the 2012 election) might choose not to enforce it.
That is apparently what has happened with Trump, after the 2016 election.
You can peruse both articles at your leisure and come to your own conclusions. I know which one convinced me, however—it was the Kavanaugh defense by Walker, who seems to have a much more persuasive argument and a much greater knowledge of the details and meaning of Kavanaugh’s lengthy dissent.
[NOTE: Part II can be found here. It’s on the difficulty of forecasting the future rulings of justices of the supposedly conservative persuasion, and the forces that sometimes cause them to turn more leftward over time.]
One other small point is that all taxes must originate in the House. This did not. So, either way you look at it, as a penalty or as a tax, it seems to me that there are good constitutional arguments against it.
It’s unconstitutional because the federal government is compelling American citizens to either buy a product or subsidize that product. It’s an assault on liberty at a fundamental level.
That it uses a punitive ‘tax’ to force citizens to buy the product ‘or else’ is secondary to its primary offense. That judges focus upon legal secondary considerations, rather than upon the “800 lb ‘gorilla’ in the room” speaks volumes.
It’s unconstitutional because not one single word in the Constitution even pretends to give Congress the authority to write laws about health care or insurance.
Ike,
Even if the Constitution is ever amended to give Congress the authority to write laws about health care or insurance it would be unconstitutional to compel individuals to buy a product or service.
And the only reason why it is constitutional for states to require auto insurance is the direct harm lack of insurance can create for the other party in an accident where the uninsured motorist is at fault.
Take a look at the 1934 Firearms Act and the subsequent SCOTUS ruling. In some ways it mirrors the barrycare ruling where a penalty magically became a tax. But in that case it involved a fundamental natural right enshrined in the Bill of Rights.
Under the barrycare ruling the feds can decide I must buy a GMC product instead of ______. I can be forced to buy what ever the DC cartel deems I must purchase. Bottom line, don’t tread on me.
I think I’m becoming a big Kavanaugh fan. If I understand Ann Coulter’s piece, Kavanaugh’s dissent (30 pages) on Heller v. D.C. Circuit, formed a beginning or core of Scalia’s Heller decision.
neo – first off, I agree that *if* the mandate is a tax, its natural reading is as a capitation tax. I seem to remember someone important arguing the same, but I can’t remember who (could have been a judge, or my con law professor at the time, or even you).
Second, reminding me of the whole penalty-for-the-purpose-of-x/tax-for-the-purpose-of-y fiasco nearly made me lose my lunch. I think at some point I deliberately blacked out most of Roberts’ opinion, which I’ve only recently (and reluctantly) re-read.
Third, unfortunately, together with King v Burwell, this then dragged up my carefully repressed memory of the shenanigans pulled with the exchanges (“established by a state” means “established by a state or the federal government”) and Medicaid (“further payments” means “incremental additional payments”). I’ve had enough emetics for one day, but I can at least see how Roberts would have been a great quack in the 5th Century (“You’re sick? Ermmm, here’s an emetic.”)
Lastly, and to the point of your post, I’m slowly gaining *some* reassurance here of Kavanaugh’s backbone. Whatever he did before, it wasn’t what Roberts did.
I still think that a bill so badly written and so obviously crafted to game the CBO in a hurry was destined to have impenetrable muddle, and the only cure for it was to take the law as it stood (a penalty means a penalty; a state is not an executive agency; all Medicaid payments does not mean additional increments of said payments) and send it back to Congress so they could do a proper job, preferably in sunlight.
Kavanaugh doesn’t bother me in any important way. He’s a rock, or seems to be anyway, on pretty much everything I’d want him to be a rock on. Dancing the Houdini dance on Obamacare to ensure that it passes muster – which Kavanaugh did *not* do – is just a problem for me, because it indicates spinelessness.
In other words according to the nominee’s ruling you can’t appeal your murder until you have been murdered?
My mother didn’t raise a fool, but either his parents did or his law school scrambled what little brains he may have had.
No matter what I’d trust him almost as much as I do Gruber.
In five years I hope I am wrong, but experience has shown me that those I do not cotton to at first never become my idol at a later date, with one exception. I hope I am wrong here but I fear we have another GOP nominee who will “grow” in office into another judge who gets messages direct from God.
“Obama’s boyfriend”–according to the Anti-Injunction act, yes, you can’t appeal until the issue ripens and the tax is paid. However, is is definitely Congress’ authority to define what the jurisdiction of the federal courts are, so the Anti-Injunction act is a constitutional exercise of this power. Yeah, it might suck (on that I agree with you), but it’s a policy question, not a constitutional one. Congress does have real power even under our Constitution properly understood, and two of those powers are to tax and define the courts’ jurisdictions. They need to exercise those powers well or the republic will fail, constitution or not. Franklin was right about keeping the Republic.
In this case, if the courts were doing their jobs well, it would redirect ire back to Congress to write better laws. Continuing to use the courts as a safety valve for congressional and executive intransigence is only making those institutions more feckless and inept. We should campaign for what is right, not what is convenient–in this case, that means campaign to change the bad laws in this case: Obamacare and the Anti-Injunction Act.
Obama’s Boyfriend – It’s kind of hard to try someone for murder if they haven’t actually managed to successfully murder someone. But Attempted Murder is *also* a crime. And it carries the exact same criminal punishments as an actual murder.
GB – It’s also important to note that you always have a legal way to avoid buying auto insurance. If you don’t own a car, then you don’t have to buy auto insurance. To the best of my knowledge, there is no locale in the US that forces you to buy auto insurance if you don’t own a car. You always have an out (albeit one that can be troublesome depending on your circumstances).
That wasn’t the case with the ACA mandate. If you were alive and legally residing in the US, then you either had to have health insurance, or you had to pay the penalty tax.
People interpret the US Constitution nearly the same as how the Faithful interpret the Bible and other scriptures i.e. Koran.
@ymarsakar: Not really.
Based on Neo’s post, I’d say Kavanaugh’s take on Obamacare is infinitely better Roberts. I don’t have a problem with holding off on adjudicating the mandate penalty/tax until it is levied.
IF Obama’s admin had never levied it, then it couldn’t be judged, which is a pain, but an accurate reading of the law.
“There might never be a need to address the constitutionality of the mandate, he explained, because a future president (after the 2012 election) might choose not to enforce it.” [Kavanaugh via Walker]
“That is apparently what has happened with Trump, after the 2016 election.” [Neo]
Yeah, but since Obama’s IRS had already levied it, those “harmed” people CAN file a legitimate suit. I don’t see the relevance of Trump’s actions, unless the fine/tax had never been levied.
As a general principle, I don’t like crud like the penalty/tax sitting on the law books unenforced ready to rear its ugly head in the future. But that doesn’t necessarily mean that a DC or SCOTUS court should just go out and “fix it.” I think Trump is being dishonest when implying that the worse of Obamacare is gone.
_____
The thing that concerns me now is do these guys Roberts and Kavanaugh really have the guts to always do the correct thing and follow the law, even under great pressure.
The story that came out of the Scalia, Alito, Thomas camp was that Roberts was all set to side with them and nullify Obamacare. Then some scathing editorials were published and Roberts caved. Similarly (?), Kavanaugh had the chance under Ken Starr to do a serious re-investigation of the Vince Foster “suicide”, one of the most incompetent and procedurally corrupted high-profile investigations ever, but didn’t. At least Kavanaugh had the excuse of youth.
TommyJay:
I cited Trump’s actions not to make a legal point of any kind, just to indicate that Kavanaugh made a good prediction.
Kavanaugh did seem to be playing too cute (much like Roberts did).
If I’m understanding the two articles you linked:
K said that the Mandate would be Constitutional if it wasn’t called a mandate. IOW, don’t say “you must have Insurance or face a penalty/tax”, just say “either have Insurance or pay a tax”
It is a distinction without a difference.
If I’m misinterpreting this, please correct me.
1.
Chief Justice Roberts has proved that he is NOT an originalist or a judge willing to go by the very words of a statute in the two Obamacare cases. In the first, in saying that the tax was a penalty on the one hand and o the other a tax, he engaged in the spoiled child’s game of switching justifications from moment to moment. In the second he completely read out of the statute the phrase “established by the state.” (In calling the phrase “ambiguous,” Justice Roberts was, in my opinion, just plain lying.)
2. We now have a thread with comments by Irv, Ike and Ira.
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