Another illustrative spat broke out over at The Federalist between Christopher Jacobs, one of the preeminent anti-Obamacare voices on the Right, and Justin Walker, a current law professor and former law clerk to both Kennedy and Kavanaugh.
Jacobs accuses Kavanaugh of cultivating the legal theory that Chief Justice John Roberts would use to declare the individual mandate a tax and, therefore, constitutional. He points to an almost 50-page Kavanaugh dissent in the D.C. Circuit, opining about Obamacare in light of the 1867 Anti-Injunction Act, which precludes the court from considering the constitutionality of taxes in court. With that dissent, Jacobs concludes that Kavanaugh “wrote a roadmap for saving Obamacare.”
Prof. Walker responded and dismissed Jacobs as too cute by half. His old boss wasn’t trying to save Obamacare, he writes; he was trying to explain that “Obamacare could be challenged as unconstitutional but that a federal jurisdictional statue required such a challenge to be brought in the future.”