Judicial Premonitions

As part of the run-up to next week’s Supreme Court oral arguments on the constitutional challenge to the Affordable Care Act, the ever-lucid Jeffrey Toobin reminds us that the decision, if narrowly drawn or narrowly adopted, may not be the utlimate ball-game on this or related subjects.

One of the more eccentric approaches to “ObamaCare” was advanced by D.C. Court of Appeals Judge Brett Kavanaugh (who cut his teeth helping write the Starr Report):

Late last year, a three-judge panel of the D.C. Circuit voted, two to one, to uphold President Obama’s health-care reform, known as the Affordable Care Act (ACA). Kavanaugh dissented, primarily on the ground that the lawsuit was premature. In a sixty-five-page opinion, Kavanaugh appeared to offer some advice to the Republicans who are challenging Obama in the election this year. “Under the Constitution,” Kavanaugh wrote, “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”

In other words, according to Kavanaugh, even if the Supreme Court upholds the law this spring, a President Santorum, say, could refuse to enforce ACA because he “deems” the law unconstitutional. That, to put the matter plainly, is not how it works. Courts, not Presidents, “deem” laws unconstitutional, or uphold them. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in Marbury v. Madison, in 1803, and that observation, and that case, have served as bedrocks of American constitutional law ever since. Kavanaugh, in his decision, wasn’t interpreting the Constitution; he was pandering to the base.

Why does this matter? Well:

If a Republican, any Republican, wins in November, his most likely first nominee to the Supreme Court will be Brett Kavanaugh.

Fair warning.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.