The Astute Dodge That Saved Kavanaugh from the Supreme Court's Conviction | Nation

WASHINGTON – In 2011, Justice Brett Kavanaugh was randomly selected to determine whether President Barack Obama's legislative success, the Affordable Care Act, was constitutional.

It was a decisive moment for the future justice of the Supreme Court. , who was 46 years old at the time. The case promised to be a political bomb separating two powerful forces. On one side, the Republican Party, which made Kavanaugh a judge and wanted to see the law invalidated as part of a limited vision of the federal authority to regulate interstate commerce. On the other hand, millions of Americans were ready to access Medicare – in some cases for the first time – with the support of specialists who said the law would be a serious error of judicial activism and taint the courts

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While two other DC panel judges decided to enforce the law, Kavanaugh was dissenting and said the trial should be dismissed for lack of quality until 39, a tax penalty in the heart of litigation takes effect. . He cited a law of 1867 known as the Tax Anti-Injunction Act. In doing so, he managed to avoid touching the bottom.

Seven years later, Kavanaugh, now 53, is President Donald Trump's candidate for the United States Supreme Court. "When her decision fell, I remember thinking:" Oh, well, that's very wise, "said Orin Kerr, a professor at the Gould Law School of the & # 39; 39, University of Southern California. "Now, that does not mean that it was wrong. Cynicism has its role, but it may be its belief in good faith. It just happened that these two policy options were quite difficult and unpleasant at the time, he thought. And his decision was an issue. "

If Kavanaugh had voted to validate the ACA, or Obamacare as he is popularly known, he would probably not have been named by Trump." As a candidate in 2016, Trump has made the # 39 Opposition to Obamacare a key campaign platform He promised voters that he would not choose judges who would abide by the law, and criticized Chief Justice John Roberts for this in decision 5-4 of the court in 2012.

But Kavanaugh had voted to shoot him, his confirmation prospects now would be in danger with Red Democrats and moderate Republican senators who want to keep the protections of the law for people with conditions pre-existing medical

Kerr noted that around the time of the DC Circuit ruling, the widespread legal consensus was that the Supreme Court would maintain Obamacare with a margin as disproportionate as 8-on-1, given its prec tooth on the commerce clause.

"So a conservative circuit judge would be deadlocked, follow the precedent and you outrage your party.Stop the law and you must not only reach, but you are not in tune with where the Supreme Court is likely to be, "said Kerr." And one or the other of these options will make your future prospects tougher. "

" That Helped "Jonathan Adler, Law Professor at Case Western Reserve University and a member of the Federalist Society, said that Kavanaugh had decided to file the case. "Looking back, was it better than he had joined the majority of the panel in this case? Of course. "

" But I do not share the view that it was a sneaky way to try to preserve its viability, "said Adler, arguing that his position was a plausible reading of the relevant law contrast with that of Jeffrey Sutton, a conservative jurist at the 6th Circuit Court of Appeals in the US, who was once considered to be on the way to doing it for the Supreme Court – until that day. he votes to keep the ACA when he was in front of him.Adler said that Sutton would have been a "strong candidate" but "it's certainly possible" that decision held him at the center.

Yet, Kavanaugh has a needle to put on Obamacare, which could come back to the Supreme Court, potentially in a Texas lawsuit, which is backed by the administration. Trump, calls to invalidate the law, including his protections of the state pre But the senators whom he could have alienated if he had ruled differently said that they had open minds.

"It's a question I have to talk to him about," said Senator Susan Collins of Maine, a moderate Republican who voted last year. to stop his party's efforts to repeal Obamacare. "I feel very strongly about consumer protections in the ACA," she said, noting that Kavanaugh "did not seem in a hurry to bow to the questions of the Affordable Care Act" in 2011.

Joe Manchin voted for Daniel Gorsuch, Trump's nominee in 2017 and will be reelected in November in a state that the president won in a 42-point landslide, is a strong advocate for the protections of the United States. ACA for people with pre-existing diseases. His condition is false more than the average American, with high rates of obesity, smoking, addiction, heart disease and diabetes

promising to examine Kavanaugh on health care. 40% of my condition, so I am very interested in his position on protecting Virginians from the West with pre-existing conditions. "

Progressives seek to undermine the candidate by placing him as someone who could be invoked for an anti" If you read his dissent, it is obvious that Kavanaugh strives to avoid enforce the law because he does not want to have cross-relationships with national republicans, "said Brian Fallon, an badistant to Hillary's 2016 Clinton campaign that now heads the liberal Justice Demand Justice group. Case handling of 2011 shows that it will put politics above the law by interpreting the constitutionality of key provisions as protections for people with preexisting conditions. "

Kavanaugh – a savvy political operator who has served on Kenneth Starr The independent legal team of the 1990s, the George W. Bush 2000 campaign and the Bush White House – has been positioning itself for the Supreme Court for decades.

"It has always Bear was considered a short-lister for a Republican President. It has been noted that Kavanaugh has periodically written law review articles that have increased his profile, and has a knack for hiring legal badistants who become Clerk in the Supreme Court. "Some judges care about that, others do not."

Another example of Kavanaugh's needle thread was a case at the end of 2017 that merged two more politically explosive issues: immigration and abortion. In a severe dissent, he stated that DC Circuit had erred in ordering the Trump administration to allow a pregnant undocumented minor to be removed from the custody to terminate her pregnancy.

The judge said that the government should have a teenager a sponsor so that he was not in the position of "facilitating" the abortion that she finally received. He did not support one of his colleagues who stated that the girl, as a person illegally in the United States, did not have the constitutional right to abort.

Kavanaugh wrote that the court established the right "to obtain an immediate abortion". at the request "and exercising on a" memorable life decision "- rhetoric echoing that of anti-abortion advocates.He called the majority decision a" radical extension of the Court's case law " supreme abortion "in the judgment Roe v. Wade and the previous ones, which he held to respect.

24 days later, Kavanaugh was added to the list put day

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