Judge Brett Kavanaugh wrote an interesting dissent in Seven-Sky v. Holder, a 2011 appeal to the U.S. Court of Appeals for the District of Columbia Circuit about the constitutionality of the individual mandate provision of the Patient Protection and Affordable Care Act. In that case, a panel majority (Judges Laurence Silberman and Harry Edwards) upheld the statute against a constitutional challenge, but Kavanaugh would not have reached the merits. Instead, he would have held that the courts lacked jurisdiction to hear the case because the Anti-Injunction Act bars any pre-enforcement lawsuit challenging the assessment or collection of a tax. Damon Root at Reason suggests that this case shows Kavanaugh to be “a jurist in the mold of John Roberts,” while, as Linda Qiu writes for The New York Times, Democratic leaders have framed Kavanaugh’s dissent in this case and another as demonstrating his “hostility” to the ACA.
The dissent is thorough, taking 33 pages of the Federal Reporter when the majority opinion addressing both jurisdiction and the merits occupied only 17. After an introductory summary, the dissent works through each step of the argument that the Anti-Injunction Act bars courts’ consideration of the challengers’ suit. It explains how the individual mandate is enforced by the Internal Revenue Service through tax penalties, argues that the Anti-Injunction Act is jurisdictional so that the executive branch’s decision to waive reliance on it was irrelevant, and contends that the Anti-Injunction Act applies because, even though the payments for violating the individual mandate are labeled “penalties” and not “taxes,” some penalties are subject to the Anti-Injunction Act — and there are some textual indicators that the ACA’s penalties fall within that category. The dissent then responds to statutory counter-arguments. It offers an alternative basis for holding that the Anti-Injunction Act applies, which had been accepted by the U.S. Court of Appeals for the 4th Circuit. And then it spends the final 13 pages answering the argument that the court should decide the case — for either legal or prudential reasons — even if the Anti-Injunction Act applies.
In the last part of the opinion, Kavanaugh does not rule on the merits, but he signals that in his view, the individual mandate may well be constitutional under Congress’ taxing power (or that, at most, a minor tweak to the statute would render it clearly constitutional). He argues that it would be better for courts to wait to see if Congress either fixes or overhauls the statute — and he also suggests that the president might himself conclude that the individual mandate is unconstitutional and decline to enforce it. According to Kavanaugh, waiting might allow the courts to avoid answering the much broader commerce clause question — a question that he argues is “extremely difficult and rife with significant and potentially unforeseen implications for the Nation and the Judiciary.” Although Kavanaugh worries that upholding the individual mandate would affirm a very broad view of the commerce clause with essentially no limits, he also argues that courts should “be just as cautious about prematurely or unnecessarily rejecting the Government’s Commerce Clause argument” because the law was enacted “after a high-profile and vigorous national debate” to achieve the “vital policy objectives” of “provid[ing] all Americans with access to affordable health insurance and quality health care.”
Ultimately, Kavanaugh’s view did not carry the day — either in the D.C. Circuit or the Supreme Court. Although the Supreme Court found the Anti-Injunction Act argument “reasonable” and appointed an amicus to present it in National Federation of Independent Business v. Sebelius, the justices ultimately rejected the argument, holding that the ACA’s penalty for violating the individual mandate is not a tax for purposes of the Anti-Injunction Act — even though it is a tax for purposes of the taxing clause of the Constitution.
Still, Kavanaugh’s dissent is potentially significant for a few reasons, and it might come up during the confirmation process. First, the opinion suggests that if Kavanaugh had reached the merits of the ACA case, he might have decided the case the same way as Chief Justice John Roberts, opting to uphold the individual mandate under the taxing clause in order to avoid a ruling on the commerce clause question. In other words, he definitely was not a solid vote to strike down the statute entirely, but his views about the scope of the commerce clause are unclear.
Second, the opinion shows that Kavanaugh is willing to look for artful ways to avoid deciding questions he does not want to decide. Neither side in the ACA litigation thought that the Anti-Injunction Act barred the suit, but Kavanaugh was nevertheless willing to craft a detailed argument to that effect. He might have thought that he was simply compelled to do so by the text of the Anti-Injunction Act — but it’s equally possible that he recognized that the litigation over the ACA was politically fraught for both the judiciary as a whole and for individual judges who might have aspirations to higher courts, and so he decided to find a way out.
Of course, finding clever ways to avoid the merits is less important in the Supreme Court, where the justices can avoid any question simply by denying certiorari — but the ability to resort to jurisdictional safety valves still comes in handy from time to time in hot-button cases (think Hollingsworth v. Perry, same-sex marriage, and Gill v. Whitford, partisan gerrymandering), and of course jurisdictional issues can play an important role in the certiorari calculus too.
Finally, Kavanaugh’s suggestion that courts should wait to see whether the president would decline to enforce the individual mandate is interesting. The executive branch is supposed to take care that the laws are faithfully executed. Although it is surely true that presidents can and should decline to enforce unconstitutional laws, the further proposition that a president should decline to enforce a law even if the Supreme Court would uphold it is very controversial. The literature on this question is deep, but for those interested in taking a dive, there are three useful articles (by Dawn Johnsen, David Barron, and Peter Strauss) published in Law & Contemporary Problems in 2000, and there have been good more recent contributions to the debate by Professors Daniel Meltzer, Saikrishna Prakash, and Joseph Landau. Kavanaugh didn’t get into the weeds in Seven-Sky, but instead stated his view of the law plainly: “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.” As support, he cited only Justice Antonin Scalia’s 1991 concurring opinion in Freytag v. Commissioner, in which four justices (none of whom remain on the court) accepted the proposition that presidents have “the power to veto” laws that encroach on executive authority “or even to disregard them when they are unconstitutional.” One very interesting question going forward is how much room Kavanaugh thinks a president has to disregard Congress.