Home » Kavanaugh’s Obamacare ruling: Part I

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Kavanaugh’s Obamacare ruling: Part I — 17 Comments

  1. One other small point is that all taxes must originate in the House. This did not. So, either way you look at it, as a penalty or as a tax, it seems to me that there are good constitutional arguments against it.

  2. It’s unconstitutional because the federal government is compelling American citizens to either buy a product or subsidize that product. It’s an assault on liberty at a fundamental level.

    That it uses a punitive ‘tax’ to force citizens to buy the product ‘or else’ is secondary to its primary offense. That judges focus upon legal secondary considerations, rather than upon the “800 lb ‘gorilla’ in the room” speaks volumes.

  3. It’s unconstitutional because not one single word in the Constitution even pretends to give Congress the authority to write laws about health care or insurance.

  4. Ike,

    Even if the Constitution is ever amended to give Congress the authority to write laws about health care or insurance it would be unconstitutional to compel individuals to buy a product or service.

    And the only reason why it is constitutional for states to require auto insurance is the direct harm lack of insurance can create for the other party in an accident where the uninsured motorist is at fault.

  5. Take a look at the 1934 Firearms Act and the subsequent SCOTUS ruling. In some ways it mirrors the barrycare ruling where a penalty magically became a tax. But in that case it involved a fundamental natural right enshrined in the Bill of Rights.

    Under the barrycare ruling the feds can decide I must buy a GMC product instead of ______. I can be forced to buy what ever the DC cartel deems I must purchase. Bottom line, don’t tread on me.

  6. I think I’m becoming a big Kavanaugh fan. If I understand Ann Coulter’s piece, Kavanaugh’s dissent (30 pages) on Heller v. D.C. Circuit, formed a beginning or core of Scalia’s Heller decision.

  7. neo – first off, I agree that *if* the mandate is a tax, its natural reading is as a capitation tax. I seem to remember someone important arguing the same, but I can’t remember who (could have been a judge, or my con law professor at the time, or even you).

    Second, reminding me of the whole penalty-for-the-purpose-of-x/tax-for-the-purpose-of-y fiasco nearly made me lose my lunch. I think at some point I deliberately blacked out most of Roberts’ opinion, which I’ve only recently (and reluctantly) re-read.

    Third, unfortunately, together with King v Burwell, this then dragged up my carefully repressed memory of the shenanigans pulled with the exchanges (“established by a state” means “established by a state or the federal government”) and Medicaid (“further payments” means “incremental additional payments”). I’ve had enough emetics for one day, but I can at least see how Roberts would have been a great quack in the 5th Century (“You’re sick? Ermmm, here’s an emetic.”)

    Lastly, and to the point of your post, I’m slowly gaining *some* reassurance here of Kavanaugh’s backbone. Whatever he did before, it wasn’t what Roberts did.

    I still think that a bill so badly written and so obviously crafted to game the CBO in a hurry was destined to have impenetrable muddle, and the only cure for it was to take the law as it stood (a penalty means a penalty; a state is not an executive agency; all Medicaid payments does not mean additional increments of said payments) and send it back to Congress so they could do a proper job, preferably in sunlight.

    Kavanaugh doesn’t bother me in any important way. He’s a rock, or seems to be anyway, on pretty much everything I’d want him to be a rock on. Dancing the Houdini dance on Obamacare to ensure that it passes muster – which Kavanaugh did *not* do – is just a problem for me, because it indicates spinelessness.

  8. In other words according to the nominee’s ruling you can’t appeal your murder until you have been murdered?

    My mother didn’t raise a fool, but either his parents did or his law school scrambled what little brains he may have had.

    No matter what I’d trust him almost as much as I do Gruber.

    In five years I hope I am wrong, but experience has shown me that those I do not cotton to at first never become my idol at a later date, with one exception. I hope I am wrong here but I fear we have another GOP nominee who will “grow” in office into another judge who gets messages direct from God.

  9. “Obama’s boyfriend”–according to the Anti-Injunction act, yes, you can’t appeal until the issue ripens and the tax is paid. However, is is definitely Congress’ authority to define what the jurisdiction of the federal courts are, so the Anti-Injunction act is a constitutional exercise of this power. Yeah, it might suck (on that I agree with you), but it’s a policy question, not a constitutional one. Congress does have real power even under our Constitution properly understood, and two of those powers are to tax and define the courts’ jurisdictions. They need to exercise those powers well or the republic will fail, constitution or not. Franklin was right about keeping the Republic.

    In this case, if the courts were doing their jobs well, it would redirect ire back to Congress to write better laws. Continuing to use the courts as a safety valve for congressional and executive intransigence is only making those institutions more feckless and inept. We should campaign for what is right, not what is convenient–in this case, that means campaign to change the bad laws in this case: Obamacare and the Anti-Injunction Act.

  10. Obama’s Boyfriend – It’s kind of hard to try someone for murder if they haven’t actually managed to successfully murder someone. But Attempted Murder is *also* a crime. And it carries the exact same criminal punishments as an actual murder.

    GB – It’s also important to note that you always have a legal way to avoid buying auto insurance. If you don’t own a car, then you don’t have to buy auto insurance. To the best of my knowledge, there is no locale in the US that forces you to buy auto insurance if you don’t own a car. You always have an out (albeit one that can be troublesome depending on your circumstances).

    That wasn’t the case with the ACA mandate. If you were alive and legally residing in the US, then you either had to have health insurance, or you had to pay the penalty tax.

  11. People interpret the US Constitution nearly the same as how the Faithful interpret the Bible and other scriptures i.e. Koran.

  12. Based on Neo’s post, I’d say Kavanaugh’s take on Obamacare is infinitely better Roberts. I don’t have a problem with holding off on adjudicating the mandate penalty/tax until it is levied.

    IF Obama’s admin had never levied it, then it couldn’t be judged, which is a pain, but an accurate reading of the law.

    “There might never be a need to address the constitutionality of the mandate, he explained, because a future president (after the 2012 election) might choose not to enforce it.” [Kavanaugh via Walker]

    “That is apparently what has happened with Trump, after the 2016 election.” [Neo]

    Yeah, but since Obama’s IRS had already levied it, those “harmed” people CAN file a legitimate suit. I don’t see the relevance of Trump’s actions, unless the fine/tax had never been levied.

    As a general principle, I don’t like crud like the penalty/tax sitting on the law books unenforced ready to rear its ugly head in the future. But that doesn’t necessarily mean that a DC or SCOTUS court should just go out and “fix it.” I think Trump is being dishonest when implying that the worse of Obamacare is gone.
    _____

    The thing that concerns me now is do these guys Roberts and Kavanaugh really have the guts to always do the correct thing and follow the law, even under great pressure.

    The story that came out of the Scalia, Alito, Thomas camp was that Roberts was all set to side with them and nullify Obamacare. Then some scathing editorials were published and Roberts caved. Similarly (?), Kavanaugh had the chance under Ken Starr to do a serious re-investigation of the Vince Foster “suicide”, one of the most incompetent and procedurally corrupted high-profile investigations ever, but didn’t. At least Kavanaugh had the excuse of youth.

  13. TommyJay:

    I cited Trump’s actions not to make a legal point of any kind, just to indicate that Kavanaugh made a good prediction.

  14. Kavanaugh did seem to be playing too cute (much like Roberts did).

    If I’m understanding the two articles you linked:

    K said that the Mandate would be Constitutional if it wasn’t called a mandate. IOW, don’t say “you must have Insurance or face a penalty/tax”, just say “either have Insurance or pay a tax”

    It is a distinction without a difference.

    If I’m misinterpreting this, please correct me.

  15. 1.
    Chief Justice Roberts has proved that he is NOT an originalist or a judge willing to go by the very words of a statute in the two Obamacare cases. In the first, in saying that the tax was a penalty on the one hand and o the other a tax, he engaged in the spoiled child’s game of switching justifications from moment to moment. In the second he completely read out of the statute the phrase “established by the state.” (In calling the phrase “ambiguous,” Justice Roberts was, in my opinion, just plain lying.)

    2. We now have a thread with comments by Irv, Ike and Ira.

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