Top Trump Supreme Court Prospect Declined to Rule Against Obamacare Mandate; Made Argument Rejected by Scalia, Alito, Thomas

By Terence P. Jeffrey | July 6, 2018 | 3:43pm EDT

Judge Brett Kavanaugh (Screen Capture)

( - Judge Brett Kavanaugh, who was appointed to the U.S. Court of Appeals for the District of Columbia by President George W. Bush, declined to rule against Obamacare’s individual mandate when it came before his court in 2011 and argued that the case could not be decided by a federal court until at least 2015 because of the Anti-Injunction Act.

All nine members of the Supreme Court—including Justices Antonin Scalia, Samuel Alito and Clarence Thomas—would later join in opinions (in the Obamacare case that the Supreme Court decided in 2012) that rejected the argument Kavanaugh embraced that the Anti-Injunction Act prevented a pre-2015 ruling on the Obamacare mandate.

Kavanaugh insisted at the beginning of his 2011 appeals-court opinion that he was "not deciding the merits" of Obamacare's individual mandate. But he did offer a suggestion toward the end of his opinion for how Congress could fix what he called the mandate's "alleged constitutional shortcoming" and make it clearly constitutional, in his view, under the Taxing Clause.

In this excerpt from his opinion in Seven-Sky v. Holder, Judge Kavanaugh argued that what he perceived to be the "only potential" constitutional "shortcoming" in Obamacare's individual mandate was "relatively slight":

President Donald Trump reportedly interviewed Kavanaugh on Monday as a possible candidate to replace the retiring Justice Anthony Kennedy on the Supreme Court.

Kavanaugh’s 65-page dissenting opinion on the appeals court was published on Nov. 8, 2011. It turned on his conclusion that the Obamacare mandate, which said that people “shall” buy insurance and must pay a “penalty” if they failed to meet that “requirement,” was in fact a “tax.”

But Kavanaugh determined that the Obamacare mandate was a “tax” in a different way than Chief Justice John Roberts would later determine it was a “tax.”

Kavanaugh argued that because the mandate was a “tax,” it was subject to the Anti-Injunction Act.

“Enacted in 1867, the Anti-Injunction Act bars pre-enforcement challenges to tax laws, subject to certain statutory exceptions not relevant here,” Kavanaugh explained in his dissent in Seven-Sky v. Holder. “The Act requires a taxpayer who objects to a tax law to first pay the tax and then assert his or her legal objections in a suit for refund.”

Kavanaugh’s argument that the “penalty” was really a “tax” required taking two steps from the actual text of the mandate. First, he noted that the Obamacare law says the “penalty” for not obeying the mandate “shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68.” Then, he notes that this part of the tax code says that “penalties” “shall be collected in the same manner as taxes.” He thus concludes that the “penalty” must be considered a “tax.”

Here is how Kavanaugh summarized his argument:

“Importantly, Section 5000A(g)(1) sets forth how the tax penalties will be assessed, collected, and paid:

'The penalty provided by this section shall be paid upon notice and demand by the Secretary, and except as provided in paragraph (2), shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68.’

“As explained more fully below, the cross-referenced provision– subchapter B of chapter 68 – in turn provides that tax penalties ‘shall be assessed and collected in the same manner as taxes.’ 26 U.S.C. § 6671(a) (emphasis added)."

“To promote compliance with the individual mandate, Congress did not enact criminal penalties enforceable by the Department of Justice. Nor did Congress impose civil penalties enforceable through civil or administrative complaints brought by the Department of Justice or the Department of Health and Human Services, for example. Instead, Congress established a tax penalty that is codified in the Tax Code, paid on individual tax returns, and assessed, collected, and enforced by the IRS. And most importantly for present purposes, Congress employed cross-references making clear that the penalty must be ‘assessed and collected in the same manner as taxes.’

“By requiring that the Affordable Care Act penalties be assessed and collected in the same manner as taxes, Section 5000A(g)(1) triggers the threshold question before us: Do we have jurisdiction to hear this pre-enforcement suit in light of the Anti-Injunction Act, which states that ‘no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court’?”

Seven months later--on June 28, 2012--the Supreme Court issued its opinion in National Federation of Independent Business v. Sebelius, which did rule on the constitutionality of the Obamacare mandate. On at least one point, all nine justices agreed: The Anti-Injunction Act did not apply to the mandate.

In Part II of the opinion of the court, Chief Justice John Roberts—joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor—rejected the Anti-Injunction Act argument.

In a separate opinion which was joined by Breyer, Kagan and Sotomayor, Ginsburg said: “I agree with the Chief Justice that the Anti-Injunction Act does not bar the court’s consideration of this case, and that the minimum coverage provision is a proper exercise of Congress’ taxing power.”

Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito joined in authoring a dissent that also rejected the Anti-Injunction Act argument.

Neither the majority opinion by Roberts, nor the Scalia-Kennedy-Thomas-Alito dissent, mentioned Kavanaugh’s dissent in the Seven-Sky v. Holder case. But they did rebut the specific argument he had made.

“The Anti-Injunction Act applies to suits ‘for the purpose of restraining the assessment or collection of any tax,’” Roberts wrote in the opinion of the court. “Congress, however, chose to describe the “[s]hared responsibility payment” imposed on those who forgo health insurance not as a ‘tax,’ but as a ‘penalty.’ There is no immediate reason to think that a statute applying to ‘any tax’ would apply to a ‘penalty.’”

“The Affordable Care Act does not require that the pen­alty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act,” Roberts concluded. “The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.”

The dissenters from Roberts’ Obamacare decision—Scalia, Alito, Thomas and Kennedy—made an even more powerful argument against applying the Anti-Injunction Act to the Obamacare mandate. They did so while also taking a dig at Chief Justice Roberts for admitting that the mandate was enforced with a “penalty” (when arguing against the applicability of the Anti-Injunction Act) but then turning around and arguing the mandate was constitutionally justified by the Taxing Clause.

Scalia, Alito, Thomas and Kennedy concluded—contrary to what Kavanaugh concluded in his appeals court dissent—that the Obamacare mandate was not a tax, that the Anti-Injunction Act did not apply to it (because it was not a tax), and that the mandate was in fact an unconstitutional act by Congress.

“We have left the question to this point because it seemed to us that the dispositive question whether the minimum-coverage provision is a tax is more appropriately addressed in the significant constitutional context of whether it is an exercise of Congress’ taxing power,” they wrote. “Hav­ing found that it is not, we have no difficulty in deciding that these suits do not have ‘the purpose of restraining the assessment or collection of any tax.’”

Therefore, the Anti-Injunction Act does not apply to them.

In a footnote addressing the argument put forth by the Amicus whom the court had assigned to argue the position that the Anti-Injunction Act did apply to the Obamacare mandate, Scalia, Kennedy, Thomas and Alito rebutted the very arguments Kavanaugh had made in his dissent on the appeals court.

“The amicus appointed to defend the proposition that the Anti-Injunction Act deprives us of jurisdiction stresses that the penalty for failing to comply with the mandate ‘shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68,’ and that such penalties ‘shall be assessed and collected in the same manner as taxes,’” they wrote.

“But that point seems to us to confirm the inapplicability of the Anti-Injunction Act,” they said. “That the penalty is to be ‘assessed and collected in the same manner as taxes’ refutes the proposition that it is a tax for all statutory purposes, including with respect to the Anti-Injunction Act.”

In the same 65-page opinion where he avoided taking a substantive position on the constitutionality of the Obamacare mandate, Kavanaugh also volunteered a way in which he thought Congress could fix what he described as being possibly a “relatively slight” and “alleged constitutional shortcoming.”

Kavanaugh wrote:

First, 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’s Taxing Clause power. To be clear, I do not take a position here on whether the statute as currently written is justifiable under the Taxing Clause or the Commerce Clause. What I am saying is that the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight. And just a minor tweak to the current statutory language would definitively establish the law’s constitutionality under the Taxing Clause (and thereby moot any need to consider the Commerce Clause).”

Even though Kavanaugh was convinced the “penalty” was a “tax” and could not be challenged until 2015 because of the Anti-Injunction Act, he would only say that a person “might be acting illegally” if they refused to obey the law’s command that they “shall” buy insurance.

Kavanaugh wrote:

“The only reason the current statute may not suffice under the Taxing Clause is that Section 5000A arguably does not just incentivize certain kinds of lawful behavior but also mandates such behavior. Section 5000A provides: ‘An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.’

“Therefore, beginning in 2014, a citizen who does not maintain health insurance might be acting illegally. The Taxing Clause has not traditionally authorized a legal prohibition or mandate, as opposed to just a financial disincentive or incentive. Another source of constitutional authority – for example, the Commerce Clause – has customarily been thought necessary to justify such prohibitions or mandates.”

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