If Republicans Can Confirm Kavanaugh, They Can Repeal Obamacare

So Republican lawmakers do have spines after all. Who knew? Last weekend’s confirmation of Brett Kavanaugh to the Supreme Court, notwithstanding the controversies surrounding his nomination, stemmed primarily from two sources.

First, many Republican lawmakers objected to how Democrats politicized the nomination—holding allegations of sexual assault against Kavanaugh for more than a month, then leaking them days before his confirmation.

Lawmakers defied the political controversies, protests, and Kavanaugh’s middling poll numbers, because they felt the need to deliver on a promise they made to voters. Well, if Republicans are going to go all crazy by starting to deliver on their promises, why don’t they deliver on the promise they made for the last four election cycles, by eliminating the health care law that has raised premiums for millions?

Meanwhile, Back at the Ranch

Senate Republicans’ bout of political courage in confirming Kavanaugh belies their other actions in the past several weeks. Even as most of the media generated ridiculous amounts of coverage on the Supreme Court nomination, the noise surrounding such topics as “boofing” allowed Republican lawmakers to renege on other political promises under the radar.

Case in point: The massive spending bill that Congress approved, and President Trump signed, last month. Despite funding most of the federal government, it does not include funding for a border wall. Republicans punted on that fight until after the election—ensuring they’ll never have it.

Mr. ‘Don’t Blink’ Blinked

But the piece de resistance of the spending bill had to come from the way that it fully funded all of Obamacare. Despite funding Obamacare—and breaking so many other promises to voters—only 56 Republicans in the House, and seven in the Senate, voted against the measure.

One Republican who supported rather than opposed the spending bill that broke so many Republican promises? None other than Sen. Ted Cruz. You may recall that in 2013, Cruz mounted a 21-hour speech prodding the Senate to defund Obamacare:

He pleaded with Republican lawmakers to deliver on their promise to voters, exhorting them, “Don’t blink!”

Last month, by voting for legislation that funded Obamacare, Cruz blinked. With “courage” like this, is it any wonder that Cruz faces the fight of his political life in his re-election campaign against Rep. Robert O’Rourke?

It’s no secret why Cruz faces problems, even in a ruby red state like Texas: Conservatives don’t feel particularly motivated to support his re-election. Given that Cruz said one thing about Obamacare five years ago, and acted in a completely contrary manner just before his election, their apathy is not without reason.

Do Your Job, And Keep Your Promises

For the past eight years, Republicans have promised to repeal Obamacare. They have control of Congress for at least the next three months. They could easily pass legislation undoing the measure in that time—provided they have the kind of backbone seen on display during the Kavanaugh nomination.

Some Senate Republicans may have voted for Kavanaugh not just because they support the nominee on his merits, but because they feared what voters would do to them if they did not support him. They should ponder that same dynamic when considering the fate of the health care law. And then they should get back to work, deliver on another promise to voters, and repeal Obamacare.

This post was originally published at The Federalist.

Liberals’ Ridiculous Health Care Charges Against Brett Kavanaugh

So much for subtle. On Tuesday, Senate Minority Leader Chuck Schumer (D-NY) placed health care at the top of the list of reasons to oppose Brett Kavanaugh’s nomination to the Supreme Court, throwing in some over-the-top rhetoric in the process:

We Democrats believe the No. 1 issue in America is health care and the ability for people to get good health care at prices they can afford. The nomination of Mr. Kavanaugh would put a dagger through the heart of that cherished belief that most Americans have.

Put aside for a moment that Obamacare itself has “put a dagger through the heart” of people’s ability “to get good health care at prices they can afford” by more than doubling individual insurance premiums during President Obama’s second term. The idea that a pending lawsuit would allow the Supreme Court to strike down Obamacare, and that a Justice Kavanaugh would cast the deciding vote to do so, ranges from implausible to ridiculous, for at least three reasons.

Second, as I previously noted, Kavanaugh wrote an opinion in 2011 that, while deferring a definitive judgment on the merits, suggested an inclination to uphold Obamacare’s mandate as constitutional. In one footnote of his opinion, Kavanaugh noted that “the fact that an exaction is not labeled a tax does not vitiate Congress’s [sic] power under the Taxing Clause.” To Kavanaugh, it mattered not that Congress said the mandate was not a tax to justify it as such under the Constitution—the same logic that troubled conservatives about Roberts’ ruling in the mandate case.

Kavanaugh did seem troubled by the fact that Obamacare contains both a statutory requirement to buy coverage and a penalty (“tax”) for those who fail to do so. But another footnote suggested a way out:

At oral argument, counsel for the Government argued that a citizen who refused to obtain health insurance would still be acting lawfully. If that were true, the mandate would presumably pass muster under the Taxing Clause. But it is not evident that the statutory language is fairly susceptible to such an interpretation. That said, perhaps the canon of constitutional avoidance would allow such an interpretation of this provision and thereby squeeze it within the Taxing Clause.

Roberts did exactly what Kavanaugh suggested, eliminating the “perhaps” from Kavanaugh’s last sentence, and defending the mandate as permissible under Congress’ Taxing Clause power.

Wall Street firms often note that past performance does not equate to future results, a motto worth noting here. But it seems highly unlikely that a judge willing to justify what Congress itself termed a “penalty” as a tax, and who cited the “canon of constitutional avoidance” as a way to uphold Obamacare, would suddenly vote to strike down the entire law—after Congress just last year declined to do so. (In fact, the Supreme Court may not even vote to hear the case at all.) All this makes Schumer’s talk of “dagger[s] through the heart” so much noise.

Schumer’s Strategy Could Be Improved

One could make a compelling argument that, if Schumer really wanted to defeat the Kavanaugh nomination, he would take the opposite tack, and “hug him close” on Obamacare. An exercise in trolling conservatives could cause them some serious discomfort: “We know Judge Kavanaugh would uphold Obamacare at the Supreme Court, because he laid the roadmap for saving Obamacare there six years ago.”

But Schumer has instead tried to play the health care card against Kavanaugh, for any number of potential reasons.

  • He worries about over-emphasizing abortion rights during the confirmation process, which could cause political heartburn for several Senate Democrats running for re-election this year in states Donald Trump won in 2016;
  • He wants to preview themes Democrats will push in the election campaign this fall;
  • He doesn’t want to anger Democrats’ base by conceding the health care issue, as they want him to fight Kavanaugh’s nomination and support Obamacare, even if doing so could improve the chances of defeating the nomination; and/or
  • He thinks it unlikely he can defeat Kavanaugh, and wants to keep his caucus united rather than make a long-shot tactical gamble that could divide Democrats.

This post was originally published at The Federalist.

“SCOTUSCare” Redux? How Brett Kavanaugh Helped Uphold Obamacare

In a 2015 dissent to an Obamacare case, Supreme Court Justice Antonin Scalia famously opined that the court had concluded “that this limitation would prevent the rest of [Obamacare] from working as well as hoped. So it rewrites the law.… We should start calling this law SCOTUScare.”

Last week’s retirement announcement from Justice Anthony Kennedy, coupled with news placing Brett Kavanaugh, a judge on the U.S. Court of Appeals for the District of Columbia, high on President Trump’s list to replace Kennedy, has drawn attention back to the legal wrangling over the law. Some observers have claimed that Kavanaugh, in a 2011 opinion written when the D.C. Circuit considered Obamacare’s constitutionality, supported the law’s individual mandate.

Extended Discussion of the Anti-Injunction Act

Most of Kavanaugh’s opinion discusses interpretations of statute that hardly qualify as an enlightening discourse of constitutional principles. Whereas his two circuit court colleagues upheld the mandate as a valid exercise of Congress’ power under the Constitution’s Commerce Clause, Kavanaugh “dissent[ed] as to jurisdiction and [did] not decide the merits.”

Kavanaugh’s dissent 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. He cautions “the reader that some of the following is not for the faint of heart”—a true enough warning, as much of the opinion devolves into tedium that only a tax lawyer could love.

While Roberts disagreed with Kavanaugh’s reasoning about applying the Anti-Injunction Act to the Obamacare mandate, such differences over the interpretation of a 150-year-old statute hardly rise to the level of disqualifying for a potential Supreme Court nominee.

A Bit of Judicial Restraint…

Indeed, three-quarters of Kavanaugh’s ruling provides a worthy defense of judicial restraint—judges avoiding decisions on weighty questions wherever possible. He argues that courts should defer to Congress, which enacted the Anti-Injunction Act in the first place:

The jurisdictional status of the Anti-Injunction Act reflects the Constitution’s separation of powers in operation.  Under the Constitution, Congress possesses the power to tax and spend, as well as the power of the purse over appropriations of money. Congress zealously guards those prerogatives. Here, Congress has not afforded discretion to the Executive Branch to waive or forfeit the Anti-Injunction Act’s bar with respect to the assessment and collection of taxes. Rather, by making the Anti-Injunction Act jurisdictional, Congress has commanded courts to abide by the Act even when the Executive Branch might not assert it.

He also disregards efforts by the Obama administration, in attempts to provide policy certainty regarding Obamacare, encouraging the courts to decide the merits of the individual mandate before it took effect, rather than invoking the Anti-Injunction Act to bar the suits until 2015:

We must adhere to the statutory constraints on our jurisdiction no matter how much the parties might want us to jump the jurisdictional rails and decide this case now….By waiting, we would respect the bedrock principle of judicial restraint that courts avoid prematurely or unnecessarily deciding constitutional questions.

Followed by Judicial Activism

The last section of Kavanaugh’s opinion explains why he believes the courts should not decide the constitutionality of the individual mandate: “this case could disappear by 2015 because, by then, Congress may fix the alleged constitutional shortcoming and ensure that the Affordable Care Act’s individual mandate provision fits comfortably within Congress’ Taxing Clause power.”

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:

This discussion about the potential problem with the Government’s Taxing Clause argument also shows how easily Congress could eliminate any such potential problem.  For example, Congress might keep the current statutory language and payment amounts and simply add a provision as basic as: “The taxpayer has a lawful choice either to maintain health insurance or make the payment to the IRS required by Section 5000A(a)-(c).” Or Congress might retain the exactions and payment amounts as they are but eliminate the legal mandate language in Section 5000A, instead providing something to the effect of: “An applicable individual without minimum essential coverage must make a payment to the IRS on his or her tax return in the amounts listed in Section 5000A(c).” Or Congress could adopt the approach from the House-passed bill, which expressly created a tax incentive and plainly satisfied the Taxing Clause.

Any of those options—and others as well—would ensure that this provision operates as a traditional regulatory tax and readily satisfies the Taxing Clause.

Kavanaugh’s Roadmap to Save Obamacare

Some will note the irony of Kavanaugh’s opinion stating that “no court to reach the merits has accepted the Government’s Taxing Clause argument.” Josh Blackman notes in his book “Unprecedented: The Constitutional Challenge to Obamacare” that Solicitor General Donald Verilli “advanced this very argument”—that severing the mandate to buy health insurance from the tax for not buying health insurance would make the latter constitutional—“at the Supreme Court.”

The gambit worked. Roberts ultimately relied upon that argument from Verilli by way of Kavanaugh to uphold the mandate as a constitutional exercise of the taxing power. That Kavanaugh, like Roberts, used the last few pages of his opinion to decry the “unprecedented” nature of a mandate upheld via the Commerce Clause power does not mitigate his favorable analysis of a mandate upheld via the Taxing Clause power.

Other analysts with more experience in constitutional and legal jurisprudence (and perhaps less experience in health policy) can opine on other parts of Kavanaugh’s record. But his opinion on Obamacare, while starting out with an admirable nod toward judicial restraint, unfortunately veered in an activist direction that gives this conservative serious pause.

This post was originally published at The Federalist.