Can Kavanaugh Be Trusted on Obamacare?

“In 2011, Judge Brett Kavanaugh was selected at random to rule on whether President Barack Obama’s signature legislative achievement, the Affordable Care Act, was constitutional.
It was a career-defining moment for the aspiring Supreme Court justice, who was 46 at the time. The case promised to be a political bomb splitting two powerful forces. On one side was the Republican Party, which made Kavanaugh a judge and wanted to see the law invalidated under a limited vision of federal authority to regulate interstate commerce. On the other were millions of Americans poised to gain access to health insurance — in some cases for the first time ever — backed by scholars who said axing the law would be a grave error of judicial activism and taint the courts.
While the other two judges on the D.C. Circuit Court of Appeals panel ruled to uphold the law, Kavanaugh dissented and said the lawsuit should be dismissed for lack of standing until after a tax penalty at the heart of the challenge took effect. He cited an 1867 statute known as the Tax Anti-Injunction Act. In doing so, he managed to avoid touching the case on its merits.” (A)

“In two Affordable Care Act (ACA) cases, Kavanaugh dissented from the majority opinion that had rejected a challenge to the ACA. In both, however, he objected only to the reasoning of the court; he agreed with the majority that the complaint against the ACA should have been rejected…
In neither case did Kavanaugh evidence strong opposition to the ACA. After a long discussion of the Tax Anti-Injunction Act in Seven-Sky, Kavanaugh concluded his opinion by musing about the possible invalidity of the mandate under Congress’s commerce power. On the one hand, he entertained arguments that the mandate encroached on state authority and individual rights, but on the other, he suggested that it was a novel approach to providing safety-net services through the private sector. Seeing both sides of the argument, he concluded that the court should avoid a constitutional ruling until the case was properly before it.” (B)

“The heated debate over how Supreme Court nominee Brett Kavanaugh would vote on the Affordable Care Act might not matter. As long as five past defenders of the health care law remain on the nation’s highest court, the odds tilt in favor of it being allowed to stand.
Some Democrats are warning that President Donald Trump’s designee could spell doom for the statute, even as some conservatives are portraying Kavanaugh as sympathetic to former President Barack Obama’s landmark legislation.
But where Kavanaugh would vote if he joins the Supreme Court is less clear than both sides suggest, according to an Associated Press review of the appeals court judge’s decisions, other writings and speeches.
Kavanaugh could get to weigh in on the health care statute if the high court takes up a lawsuit brought by Texas and 19 other states. Those states are seeking to strike down the entire law because the Republican-backed tax overhaul removed fines for not having health insurance.
The Trump administration recently said in that case that it will no longer defend the ACA’s protections for people with pre-existing medical conditions, nor its limits on how much insurers can charge older customers.
But if Chief Justice John Roberts joins the four Democratic appointees in upholding the law — as he did in the two previous challenges — Kavanaugh wouldn’t be the deciding factor. Retiring Justice Anthony Kennedy joined the majority on the second decision, in 2015, for a 6-3 majority.” (C)

“If Kavanaugh is confirmed, he and the court may have to consider a lawsuit by Texas and other states that challenges the Affordable Care Act (ACA)’s health insurance protections for patients with preexisting conditions such as cancer, diabetes, and Parkinson disease.
Supporters of the ACA: Some people have voiced concern that Kavanaugh has publicly discussed fears about how broad the ACA can be and have also noted that he may be the deciding vote on whether Americans with preexisting conditions will continue to receive healthcare.
Critics of the ACA: In 2011, Kavanaugh wrote a narrowly focused dissent from the appeals court’s decision that upheld the law. He did not dissent because he thought the law was unconstitutional; rather, he thought the court lacked the jurisdiction to consider the question according to the Anti-Injunction Act. In the dissent, he wrote that the ACA is “unprecedented” in US history and warned that upholding it would “usher in a significant expansion of congressional authority with no obvious principled limit.”” (D)

“All of which brings us back to the question: Can Brett Kavanaugh be trusted on Obamacare? The answer is an easy, “Yes,” if one reads the above excerpt from his opinion in Seven-Sky. The last sentence tells you all you need to know: “It follows from those two provisions, taken together, that these Affordable Care Act penalties must be assessed and collected ‘in the same manner as taxes.’” Everything discussed in this passage has been rendered moot by Congress, a possibility Kavanaugh discussed in the same opinion. After December 31, 2018, those two provisions can no longer be “taken together” because there will be no tax penalty.
Consequently, the only question left for SCOTUS to decide, when Texas v. United States arrives on its doorstep, is what possible rationale can be used to uphold the individual mandate? The Court has already rejected the Commerce Clause argument. The Republican Congress eliminated the tax effective January 1. Thus, because Judge Kavanaugh is an originalist, he will look to the Constitution for some other legitimate reason to uphold the mandate. He will, of course, come up dry. And that’s why Brett Kavanaugh can be trusted on Obamacare.” (E)

(A) The Artful Dodge That Saved Kavanaugh From Supreme Court Doom, by Sahil Kapur, https://www.bloomberg.com/news/articles/2018-07-16/the-artful-dodge-that-saved-kavanaugh-from-supreme-court-doom
(B) (B) Examining Supreme Court Nominee Kavanaugh’s Health Care Opinions, by Timothy S. Jost, http://www.commonwealthfund.org/blog/2018/supreme-court-nominee-health-care-opinions
(C) Dems see Kavanaugh as Obamacare threat, but law likely safe, by alanna durkin richer and dan sewell, https://abcnews.go.com/Health/wireStory/dems-kavanaugh-obamacare-threat-law-safe-56643576
(D) 5 Things to Know About SCOTUS Nominee Brett Kavanaugh’s Healthcare Views, https://www.ajmc.com/
(E) Can Kavanaugh Be Trusted on Obamacare?, https://spectator.org/can-kavanagh-be-trusted-on-obamacare/

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