Ever since his name was floated as the front-runner for nomination to the Supreme Court, Brett Kavanaugh’s ample body of decisions has undergone extreme vetting inside conservative journals of opinion. Some of these analyses have been more scholarly (or at least more cognizant of the art of the legal profession) than others.
One of the most resonant debates centers around Kavanaugh’s dissent as a D.C. Circuit Court judge in Seven Sky v. Holder. In that dissent, he did not rule on the merits of the case. Rather, he said that the case could not be heard by the court because to do so would violate the “Anti-Injunction Act.” To quote Kavanaugh: “The Anti-Injunction Act applies here because plaintiffs’ pre-enforcement suit, if successful, would prevent the IRS from assessing or collecting tax penalties from citizens who do not have health insurance. That straightforward chain of logic convincingly demonstrates that the Anti-Injunction Act poses a jurisdictional bar to our deciding this case at this time.”
What Kavanaugh was referring to was the so-called “penalty” for failure to comply with Obamacare’s individual mandate to purchase qualifying health insurance. In so doing, Kavanaugh waded into a conservative family feud as old as Obamacare itself — is this penalty a tax, or not? This question took on increased importance as it was a central justification Chief Justice John Roberts used after the Kavanaugh dissent to rule Obamacare substantially constitutional.