THE CONSERVATIVE CASE FOR UPHOLDING THE LAW VS. THE OTHER CONSERVATIVE CASE FOR UPHOLDING IT:

The Medicaid Ambush: The Supreme Court's unexpected and astounding reasons for wanting to hear a challenge to Obamacare. (Simon Lazarus and Dahlia Lithwick, Nov. 14, 2011, Slate)

The court asked the parties to brief and argue for an hour whether the lawsuit brought by the states challenging the insurance mandate is barred by the 19th century Anti-Injunction Act. That's a law that precludes claimants from asking for a refund on a tax until the tax has been collected and paid. If the court were to determine that this law applies in this case, then the courts wouldn't have jurisdiction to even consider the challenges until 2015, when the tax-penalty provision goes into effect. This argument was advanced in the 4th Circuit decision upholding the ACA and made with even more force by Judge Brett Kavanaugh in the District of Columbia Circuit Court of Appeals when it upheld the ACA last week. In a 65-page dissent, Kavanaugh writes: "For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions. But in my respectful judgment, deciding the constitutional issues in this case at this time would contravene ... the Anti- Injunction Act."

Cautioning that courts of appeals should be wary of upholding such a dramatic law, Kavanaugh goes on to warn the courts against "prematurely or unnecessarily rejecting the Government's Commerce Clause argument." This is because striking down a major law should be done only rarely, he writes, and also because "we may be on the leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help." He concludes: "Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now." The fact that the court asked for extra briefing on the jurisdictional issue may signal that some of the court's conservatives are contemplating Kavanaugh's advice about leaving this matter to the political branches to resolve, or at least kicking it down the road until after the election.

It's one of those classic cases where Scalia and Thomas will insist on writing their own opinions that no one joins, but arrive at the same result as the rest of the majority.  Which is why collegiality is more important in a nominee than "brilliance."

Posted by oj at November 15, 2011 4:16 PM
Tweet   

Follow @brothersjudd