Can Kavanaugh Be Trusted on Obamacare?

The American Spectator

"A much-debated 2011 opinion suggests that he can."

"Even before President Trump chose Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, political henchmen and media hacks began rummaging through his record like so many rats in a ripe dumpster. Their sojourn in the slime revealed nothing more sinister than a conscientious jurist who has actually read the Constitution. To their dismay, his most notable opinion as a judge on the D.C. Circuit Court of Appeals suggests that he’ll vote to strike down Obamacare’s individual mandate, as well as its guaranteed issue and community rating provisions, when Texas v. United States makes its way to SCOTUS.

"Texas v. United States is, of course, the latest challenge to Obamacare’s constitutionality. It was filed by Texas and nineteen additional states not long after Congress reduced the “tax penalty” associated with the health care law’s individual mandate to zero. In 2012 Chief Justice Roberts ruled, in NFIB v. Sebelius, that the individual mandate was constitutional because it was essentially a tax collected by the Internal Revenue Service (IRS) for purposes of raising revenue for the government. The plaintiffs argue that the elimination of the tax penalty by Congress last year rendered the Roberts ruling both “irrational” and “legally impossible.”

"The case is currently being argued in the U.S. District Court for the Northern District of Texas before Judge Reed O’Connor, who is almost certainly going to rule in favor of the plaintiffs. After going through the usual tedious appeals process, it will inevitably end up before SCOTUS. And this is where some conservatives worry about Kavanaugh. Why? " . . .

Consequently, the only question left for SCOTUS to decide, when Texas v. United States arrives on its doorstep, is what possible rationale can be used to uphold the individual mandate? The Court has already rejected the Commerce Clause argument. The Republican Congress eliminated the tax effective January 1. Thus, because Judge Kavanaugh is an originalist, he will look to the Constitution for some other legitimate reason to uphold the mandate. He will, of course, come up dry. And that’s why Brett Kavanaugh can be trusted on Obamacare.