Kavanaugh on the Case for Not Deciding the Constitutionality of the Mandate

Judge Kavanaugh wrote a separate opinion in the DC Circuit’s mandate case that many readers will overlook: It’s based on the tax code, and the opinion itself acknowledges that its analysis is dense and difficult. (“The Tax Code is never a walk in the park. . . . I caution the reader that some of the following is not for the faint of heart.”) At the same time, Kavanaugh’s opinion closes with a very interesting prudential case for not deciding the merits of the mandate, and instead deciding the case on Anti-Injunctive Act grounds (see starting at page 51). Among them, Kavanaugh argues that if the Court doesn’t decide the issue now, it may never have to decide the issue because the statute could be easily amended to make the mandate easily constitutional under the taxing power. It’s an interesting read, and one that I suspect may get some attention when the case reaches the Supreme Court.

As an aside, it’s interesting that the circuit court decisions on the mandate have included three opinions by leading lights of the Federalist Society — Judges Silberman, Sutton, and Kavanaugh — and that none of them voted to strike down the mandate. These three judges are hugely influential in the conservative legal community, and the conservative Justices and clerks on the Court watch their work closely. Although a split is a split, and the Court is extremely likely to take a mandate case, the absence of a vote to strike down the mandate among the opinions from Judges Silberman, Sutton, and Kavanaugh can’t be welcome by mandate opponents.