A much-debated 2011 opinion suggests that he can.
Even before President Trump chose Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, political henchmen and media hacks began rummaging through his record like so many rats in a ripe dumpster. Their sojourn in the slime revealed nothing more sinister than a conscientious jurist who has actually read the Constitution. To their dismay, his most notable opinion as a judge on the D.C. Circuit Court of Appeals suggests that he’ll vote to strike down Obamacare’s individual mandate, as well as its guaranteed issue and community rating provisions, when Texas v. United States makes its way to SCOTUS.
Texas v. United States is, of course, the latest challenge to Obamacare’s constitutionality. It was filed by Texas and nineteen additional states not long after Congress reduced the “tax penalty” associated with the health care law’s individual mandate to zero. In 2012 Chief Justice Roberts ruled, in NFIB v. Sebelius, that the individual mandate was constitutional because it was essentially a tax collected by the Internal Revenue Service (IRS) for purposes of raising revenue for the government. The plaintiffs argue that the elimination of the tax penalty by Congress last year rendered the Roberts ruling both “irrational” and “legally impossible.”
The case is currently being argued in the U.S. District Court for the Northern District of Texas before Judge Reed O’Connor, who is almost certainly going to rule in favor of the plaintiffs. After going through the usual tedious appeals process, it will inevitably end up before SCOTUS. And this is where some conservatives worry about Kavanaugh. Why? The language used by Chief Justice Roberts to save the individual mandate echoes an opinion the judge wrote in Seven-Sky v. Holder, which was decided about nine months prior to the Supreme Court’s ruling in NFIB v. Sebelius. Specifically, they worry about the following passage:
[The] Affordable Care Act requires that the tax penalty for failure to maintain health insurance “be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68” of the Tax Code.… And penalties under subchapter B of chapter 68 in turn must “be assessed and collected in the same manner as taxes”… 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.”
This is the passage from which health policy wonks such as Christopher Jacobs derive the claim that Judge Kavanaugh provided a “roadmap for saving Obamacare.” There are two problems with this assertion. First, it was part of a larger argument made by Kavanaugh to the effect that the Anti-Injunction Act (AIA) applied to any lawsuit involving the individual mandate. AIA forbids legal challenges to taxes before they go into effect, and the mandate’s implementation date was then three years in the future. He concluded, in other words, that the plaintiffs in Seven-Sky v. Holder had no standing to sue because they hadn’t yet been injured.
Second, neither the U.S. Court of Appeals for the D.C. Circuit nor the U.S. Supreme Court heeded Judge Kavanaugh’s argument. The majority in Seven-Sky v. Holder simply ignored it and accepted the Obama administration’s risible claim that the individual mandate was a valid exercise of congressional power pursuant to the Constitution’s Commerce Clause. Chief Justice Roberts rejected both the Commerce Clause argument as well as Judge Kavanaugh’s AIA claim. In a classic example of doublethink, he held that it was not a tax for purposes of AIA but that it was nonetheless constitutional because it fell within Congress’ taxing powers:
The Affordable Care Act describes the “shared responsibility payment” as a “penalty,” not a ‘tax.’ That label is fatal to the application of the Anti-Injunction Act.… It does not, however, control whether an exaction is within Congress’s power to tax.… Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax … the payment is collected solely by the IRS through the normal means of taxation.
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.