Most of the judges reviewing the Obama administration’s health care law have ruled on the heart of the case: whether Congress had the authority to require individuals to buy health insurance by 2014 or pay a tax penalty.
But a dissent issued in Tuesday’s 2-1 D.C. Circuit Court opinion could provide a roadmap for delaying a decision on the individual mandate until after 2014.
Judge Brett M. Kavanaugh dissented from the majority opinion that upheld the mandate, writing that he thought it was premature for the courts to step in and decide the issue.
“I have the greatest respect for my two colleagues on this panel,” Kavanaugh wrote, referring to Judge Laurence H. Silberman and Judge Harry T. Edwards, who voted to uphold the law.
But Kavanaugh said his colleagues erred in ruling on the “weighty and historic constitutional questions of the case” without first considering a federal tax law. Kavanaugh argues that the law – the Anti-Injunction Act -bars courts from so-called “pre-enforcement” challenges.
In essence, Kavanaugh says, the health care law requires most people who choose not to buy health insurance in 2014 to pay a penalty. He argues that the penalty functions as a tax and the Anti-Injunction Law limits the jurisdiction of federal courts over challenges to the tax until it is actually assessed. Because the individual mandate takes effect in 2014, Kavanaugh says, courts can’t review the constitutionality of the law until then.
“Kavanaugh’s opinion provides a detailed, cogent analysis of concluding why the Anti-Injunction Act does prevent the federal courts from taking the case right now, ” says Kevin C. Walsh, a professor of Law at the University of Richmond School of law.
Judges Silberman and Edwards rejected Kavanaugh’s analysis, however, saying that Congress, in passing the health care law, did not intend the tax law to apply.
But Kavanaugh remained firm. “For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions,” he wrote, but adding that it was too early to do so.
Kavanaugh’s position is no surprise. He sat behind large tax tomes at oral arguments and asked both sides repeated questions regarding the applicability of the law. Neither the federal government nor the challengers in the case believe the Anti-Injunction Act should apply.
Kavanaugh is not the first judge to argue the cases should be dismissed. In September, the Fourth Circuit Court of Appeals dismissed a similar challenge to the health care law, finding that the Anti-Injunction Act “strips us of jurisdiction” from hearing a pre-enforcement challenge.
But Kavanaugh , who was nominated by President George W. Bush, sits on one of the most important appeals courts in the country and is a highly respected judge in conservative circles.
“Kavanaugh provides additional textual and structural arguments,” says Walsh, “that would likely appeal to several of more conservative members of the court.”
The Supreme Court is set to meet behind closed doors Thursday to discuss whether to take up one of the health care challenges. Although the D.C. Circuit case is not presently in front of the court, the decision, issued days before the Supreme Court conference, is sure to be influential.
Stephen I. Vladeck, a professor of Law at American University Washington College of Law, says that even if the Court agrees to take on one of the health care challenges, it might not reach a definitive ruling on the constitutionality of the mandate.
He says some justices “might believe that it would be better to duck the issue by holding the Anti-Injunction Act forecloses resolving this on the merits until 2014.”
In his opinion, Kavanaugh said the judiciary should “exercise great caution” before ruling on the merits of the case and deciding whether the Commerce Clause authorizes Congress to pass the mandate.
“The significant implications of a Commerce Clause decision in this case – in either side’s favor – lead to this point: If we need not decide the Commerce Clause issue now, we should not decide the Commerce Clause issue now.”