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SCOTUS Shortlister Brett Kavanaugh on Obamacare and Judicial Restraint

Reviewing the record of a possible replacement for Justice Anthony Kennedy.

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C-SPAN

Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit is reportedly among the handful of finalists under consideration by President Donald Trump to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court.

Kavanaugh, 53, attended Yale Law School and clerked for Justice Kennedy at SCOTUS. His record includes stints as associate counsel in the office of Independent Counsel Ken Starr as well as numerous positions in the George W. Bush administration, including staff secretary to the president and senior associate counsel to the president. Bush appointed him to the D.C. Circuit in 2006.

What sort of Supreme Court justice might Kavanaugh turn out to be if he gets the nomination and is successfully confirmed by the Senate? His 2011 dissent in the case of Seven-Sky v. Holder offers some potentially significant clues.

At issue was the constitutionality of the Patient Protection and Affordable Care Act, also known as Obamacare. Specifically, the case asked whether Obamacare's individual mandate requiring every American to have health insurance was a legitimate exercise of Congress' power to regulate interstate commerce. It was one of several constitutional challenges to Obamacare then working their way towards the Supreme Court.

Seven-Sky was a victory for the Obama administration. A divided three-judge panel upheld the mandate's constitutionality on Commerce Clause grounds. Judge Kavanaugh dissented, though not because he necessarily disagreed with the majority's Commerce Clause analysis. Rather, Kavanaugh dissented because he thought the federal courts had no business hearing the case in the first place.

"For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions," Kavanaugh wrote. "By waiting, we would respect the bedrock principle of judicial restraint that courts avoid prematurely or unnecessarily deciding constitutional questions."

In Kavanaugh's view, the D.C. Circuit should have been guided by the Anti-Injunction Act, an 1867 law that says, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." In other words, a tax cannot be challenged until it has been assessed and paid. And in Kavanaugh's view, Obamacare's individual mandate deserved to be counted as a tax, even though the law's authors called it a "penalty." "The Anti- Injunction Act precludes us from deciding this case at this time," he wrote.

Kavanaugh then pivoted to a broader discussion of the judiciary's role in this high-stakes constitutional showdown. The courts should be "cautious," he wrote, "about prematurely or unnecessarily rejecting the Government's Commerce Clause argument." That is because "the elected Branches designed this law to help provide all Americans with access to affordable health insurance and quality health care," which he described as "vital policy objectives." He added: "This legislation was enacted, moreover, after a high-profile and vigorous national debate. Courts must afford great respect to that legislative effort and should be wary of upending it."

If the idea of the federal courts being "wary" of "upending" Obamacare because the law was enacted by the "elected Branches" after "vigorous national debate" sounds familiar, that is because it is so similar to the 2012 argument made by Chief Justice John Roberts when he upheld Obamacare's constitutionality.

"The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution," Roberts wrote in National Federation of Independent Business v. Sebelius. "Granting the Act the full measure of deference owed to federal statutes, it can so be read." He concluded: "It is not our job to protect the people from the consequences of their political choices."

Many observers have suggested that President Trump will try to replace Justice Kennedy with a jurist "in the mold" of Antonin Scalia, or perhaps of Scalia's successor, Neil Gorsuch. If Trump nominates Brett Kavanaugh to the Supreme Court, he may well end up with a jurist in the mold of John Roberts.

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