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Posts Tagged ‘Kavanaugh’

Ruth Marcus of the Washington Post argues in an op-ed that a Supreme Court ruling on the constitutionality of the individual mandate should come sooner rather than later. The argument targets some of the prudential reasoning at the end of Judge Kavanaugh’s dissent in Seven-Sky v. Holder while passing over Kavanaugh’s “technical interpretation of the statute.” Marcus argues that “the arguments of Kavanaugh and other advocates of constitutional can-kicking are unconvincing.” Fine. But whatever one’s prudential views about timing, they cannot overcome what a straightforward textual interpretation of the AIA requires. For that reason, advocates of AIA avoidance should aim their arguments at Congress in seeking an exception from the AIA (as I have previously argued).

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The D.C. Circuit’s opinion upholding the minimum essential coverage provision is available here. Brad Joondeph has a quick summary at ACA Litigation Blog. More to come here on the Anti-Injunction Act, which split the panel. Judge Kavanaugh’s dissent is, in my estimation, persuasive and powerfully reasoned. The nature of the 2-1 circuit split on the applicability of the Anti-Injunction Act suggests that, at the very least, the issue is a difficult and close one.

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Ariane DeVogue of ABC News reports from today’s oral arguments in the D.C. Circuit that Judge Kavanaugh asked a series of questions that may indicate his belief that the federal tax Anti-Injunction Act bars the plaintiffs’ pre-enforcement challenge to the individual mandate. Judge Kavanaugh worked on Ken Starr’s investigation of Bill Clinton and served in high-level positions in George W. Bush’s White House. If he concludes that the AIA bars the challenge, it will be difficult to attribute that conclusion to some sort of left-leaning tendencies in his jurisprudence.

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