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Brett Kavanaugh Said Obamacare Was Unprecedented And Unlawful


Judge Brett Kavanaugh should be the next Supreme Court justice. He has by far the strongest, most consistent, most fearless record of constitutional conservatism of any federal court of appeals judge in the country.

Over 12 years and 300 opinions, he has repeatedly fought for principles of textualism and originalism, reined in regulatory overreach, and ensured that administrative bureaucrats are accountable to the elected president. Nominating Kavanaugh would continue President Trump’s exemplary record of selecting the best-qualified person for the Supreme Court, as he did with his brilliant choice of Justice Neil Gorsuch.

Unfortunately, being the clear best choice has downsides, including inviting unfair attacks. One came Monday in a lengthy article by Christopher Jacobs claiming that Kavanaugh “wrote a roadmap for saving Obamacare.” That is nonsense, and conservatives should not be misled into thinking otherwise.

In 2011, two judges on the D.C. Circuit upheld the Obamacare individual mandate under the Commerce Clause. Kavanaugh dissented from that decision, which was authored by the respected Judge Laurence Silberman, a Reagan appointee. Kavanaugh explained that Obamacare could be challenged as unconstitutional, but that a federal jurisdictional statute required such a challenge to be brought in the future.

Critically, and almost entirely absent from Jacobs’ account of the decision, Kavanaugh then called the individual mandate “a law that is unprecedented on the federal level in American history” and observed that upholding the individual mandate would be a “a jarring prospect” that would “usher in a significant expansion of congressional authority with no obvious principled limit.” The government’s argument for the mandate, Kavanaugh continued, would “ultimately extend as well to mandatory purchases of” many other products, a result that would have “extraordinary ramifications.”

Kavanaugh’s thorough and principled takedown of the mandate was indeed a roadmap for the Supreme Court—the Supreme Court dissenters, justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, who explained that the mandate violated the Constitution. I am very familiar with that opinion, because I served as Kennedy’s law clerk that term. I can tell you with certainty that the only justices following a roadmap from Brett Kavanaugh were the ones who said Obamacare was unconstitutional.

Kavanaugh was equally critical of the individual mandate under the weak Taxing Clause argument advanced by the government and catastrophically accepted by the Supreme Court. Kavanaugh explained that “no court to reach the merits has accepted the Government’s Taxing clause argument,” thereby showing his agreement with all the courts of appeals that correctly found the mandate unsustainable under that clause.

The Taxing Clause, he continued, “has not traditionally authorized a legal prohibition or mandate,” which Obamacare plainly contained. Contrary to Jacobs’ revisionist history, Kavanaugh’s Taxing Clause discussion is thus the opposite of a roadmap to upholding the statute under the Taxing Clause, as the Supreme Court ultimately did in its indefensible decision. Rather, Kavanaugh’s dismissal of the Taxing Clause argument is a roadmap to the conclusion reached by the dissenters—that the individual mandate is unconstitutional under the Taxing Clause.

To be sure, Kavanaugh suggested that a different statute without a mandate might pass muster under the Taxing Clause. But a statute without the mandate would not be Obamacare; it would be an entirely different law. Kavanaugh’s hypothetical discussion of a different statute without a mandate could not be a roadmap to upholding the statute with the mandate that was actually before the court.

A final point: Kavanaugh explained that waiting to resolve the challenge to Obamacare was not only required by law, but also the wise and judicially restrained course. 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. That suggestion triggered a furious response from liberal commentator Jeffrey Toobin in The New Yorker.

Moreover, Kavanaugh warned that rushing to resolve the constitutionality of Obamacare in 2012, rather than respecting the statutory limitations on the court’s authority, could result in an error in judgment. Kavanaugh was right.

Six years later, with the individual mandate finally coming off the books thanks to President Trump, the stakes of this nomination could not be higher. Fortunately, the president’s selection of Gorsuch shows that he knows what to do.

Kavanaugh is by far the strongest choice for the job. His courageous and influential opinions on countless different issues—presidential power, regulatory overreach, religious liberty, the Second Amendment, and the list goes on—leave no doubt that he would be a forceful conservative justice for decades to come. Conservatives should not be misled by misinformation. Judge Brett Kavanaugh has the principles, the record, and the backbone that we need on the Supreme Court.