The New Neo

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.]