Jul 10, 2018

Brett Kavanaugh's ACA rulings

Photo: Mandel Ngan/AFP/Getty Images

Now that President Trump has nominated Judge Brett Kavanaugh to the Supreme Court, there are two specific health care cases you'll probably be hearing more about — from both Democrats warning that he'll overturn the Affordable Care Act and conservative hardliners who are afraid he won't.

Kavanaugh's most significant ACA-related decision was in a case about the individual mandate. He did not, contrary to what some of his critics have implied, vote to uphold the mandate.

The details:

  • Kavanaugh, citing the federal Anti-Injunction Act, said the courts should not entertain taxpayers' lawsuits over a tax until they've had to pay it. The basic idea is that you haven't suffered a real harm until the IRS has sent you a bill.
  • He did not take a position on the merits of the mandate.
  • Yes, this posture assumes that the mandate is a tax, as Chief Justice John Roberts ultimately held in 2012. That's because it's part of the tax code and was enforced by the IRS. Like a tax.

The second case dealt with a more far-fetched challenge: It sought to have the ACA invalidated because the Senate wrote most of it.

  • The Constitution's Origination Clause says bills that raise revenues have to originate in the House, not the Senate.
  • So when the Senate wants to pass a revenue-raising bill, it often takes a random House-passed bill, strips everything out, and adds an amendment with whatever it wants to pass. That's what it did with the ACA.
  • "Such Senate amendments are permissible under the Clause’s text and precedent," Kavanaugh wrote. But he said an earlier ruling had upheld the law for the wrong reasons, and that his court should take another look at that decision. He lost.

Small world: Kavanaugh and HHS Secretary Alex Azar worked together on independent counsel Ken Starr's investigation of the Clintons in the '90s. Azar praised the pick last night.

  • Expect Kavanaugh to face some questions about his experience with Starr — and how it shaped his views on whether and how presidents can be prosecuted — during his confirmation hearings.

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