Though President Trump’s pick of Brett Kavanaugh for the Supreme Court has been broadly praised among the conservative legal establishment, it has produced its share of grumbles among other conservatives. Part of the division is based more on intangible cultural factors. Though nobody would question his credentials, there’s fear among a subset of conservatives that as a Washington insider and former Bush administration lawyer, Kavanaugh could turn out to be overly cautious and fearful about upsetting elites, thus upholding unconstitutional laws and sustaining bad precedents.
Though Kavanaugh’s hundreds of decisions in a dozen years as an appellate judge have been broadly conservative (particularly when it comes to reining in the regulatory state), there is one decision in particular that has divided conservatives — his dissenting opinion in an Obamacare case brought to the D.C. Circuit Court of Appeals in 2011. This has triggered a debate over whether Kavanaugh could be another Chief Justice John Roberts, who the Right still does not forgive for upholding Obamacare.
In the Seven-Sky v. Holder case, a forerunner to the landmark Supreme Court ruling, a three judge panel decided 2-1 that Obamacare’s individual mandate was constitutional. While Kavanaugh dissented from the main opinion, he did not go as far as declaring Obamacare unconstitutional. Instead, he argued that the court was not yet in a position to hear the case, because under an arcane 19th-century law known as the Tax Anti-Injunction Act, courts could not hear challenges to a tax that had not been collected yet, and thus any decision would have to wait until 2015, when taxpayers had to file mandate penalties for the first time. In summary, Kavanaugh didn’t uphold Obamacare, but he did not take the opportunity to strike it down, either.
Where things get more complicated is that as part of his legal analysis, he alluded to the fact that with a small tweak of language, the law could be seen as a constitutional exercise of Congress’s taxing power. As Josh Blackman, who chronicled the case in his book “Unprecedented” notes, Obama Solicitor General Donald Verrilli cited this Kavanaugh point in his brief to the U.S. Supreme Court. This forms the basis of critic Chris Jacobs’ assertion that Kavanaugh’s opinion provided the roadmap for Roberts to uphold Obamacare as a tax.
On the other hand, Kavanaugh’s suggested change to Obamacare could also be seen as an acknowledgment that it was not constitutional as written. Furthermore, elsewhere in his opinion, Kavanaugh also expressed skepticism that the Commerce Clause allowed for the mandate. “To uphold the Affordable Care Act’s mandatory-purchase requirement under the Commerce Clause, we would have to uphold a law that is unprecedented on the federal level in American history,” Kavanaugh wrote. “That fact alone counsels the Judiciary to exercise great caution.” Kavanaugh went on to call the implications of punishing those without health insurance “jarring.” Law professor Justin Walker, who clerked for Kavanaugh as well as Supreme Court Justice Anthony Kennedy during the time the Obamacare case was decided, has argued that Kavanaugh’s critical Commerce Clause analysis was more influential at the Supreme Court level than his tax analysis. “I can tell you with certainty that the only justices following a roadmap from Brett Kavanaugh were the ones who said Obamacare was unconstitutional,” he wrote.
The argument over Kavanaugh’s Obamacare opinion is likely to play a central role in the debate over his jurisprudence in the months ahead, particularly as another case challenging the law makes its way through the courts. But it’s worth cautioning that how Kavanaugh ruled at the appellate court level may not be an indication of how he would have ruled were he on the Supreme Court in 2012. To start, there was already a clear majority of justices who ruled that the Anti-Injunction Act did not bar them from deciding the case. So either way, the Court was going to get to the merits. That could have forced a hypothetical Justice Kavanaugh to make a different decision, and given his skepticism about the Commerce Clause argument and his hint that a tweak to Obamacare would be needed to make it a constitutional exercise of taxing power, it’s quite possible he would have been a vote to overturn the law.
So, to sum up, viewed from a conservative perspective, it would have been more reassuring had Kavanaugh voted to strike down the law, but on the other hand, the nuance of his opinion contains some positive signs and makes any sort of firm conclusions hard to draw. Thus, it seems that the decision is a reason for concern, but nowhere near a justification for panic.
