Brett Kavanaugh Unsuitable For The Supreme Court!

Discussion in 'Law & Justice' started by JimfromPennsylvania, Aug 31, 2018.

  1. JimfromPennsylvania

    JimfromPennsylvania Active Member

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    The case of Seven Sky v. Holder, 661 F.3rd 1, where Brett Kavanaugh wrote the dissent is a big red flag indicating that Judge Kavanaugh should not be confirmed to the U.S. Supreme Court. This case demonstrates two major shortcomings of the Judge's candidacy that should block his confirmation for a seat on the Supreme Court; one, that he is too much of an ideologue (specifically a right wing ideologue) and two, his legal intellect (legal analytical or legal reasoning ability) is not of the highest caliber is not first rate is not what responsible Senators would consider acceptable in a candidate for confirmation to the highest Court of the country.



    The Seven Sky case is an Affordable Care Act (ACA) case where the petitioner Susan Seven-Sky and others argue that the Federal Government did not have the constitutional authority to issue the ACA's individual mandate and corresponding penalty (the individual mandate is the requirement that everyone carry health insurance that meets the ACA "essential benefits" standard or pay a penalty) and therefore the IRS should be enjoined from assessing and collecting the penalty. Judge Kavanaugh dissented in the case he did not get to the merits of the case rather he ruled the court did not have jurisdiction to hear the case based on the Anti-injunction Act (AINA). The Anti-injunction Act stands for the proposition that U.S. courts cannot hear tax cases before the IRS assesses and collects the tax, taxpayers must pay the tax and sue for a refund if they believe the tax is unconstitutional; the public policy that Congress was trying to give effect to in creating the act is the recognition that revenue raising, taxing, by the Federal government is too important to the welfare of the nation it funds its operation and as such should not be disrupted by lawsuits which may not have merit, post payment legal recourse is sufficient for the taxpayer to get justice. Since the ACA made the individual mandate penalty to be assessed and collected along with people paying their taxes Judge Kavanaugh deemed the AINA to be applicable and ruled the petitioners had to wait until after 2014 to bring this lawsuit for Congress made the first year of the mandate penalty being in effect to be the year 2014. Frankly, Judge Kavanaugh decision seems to be one that a Judge would have to strain to make! This type of government action collecting a penalty against a person for that person not carrying health insurance isn't the type of harm Congress was trying to protect against in creating the Anti-injunction act. Interestingly, when the Supreme Court ultimately heard the issue they found the Anti-Injunction Act didn't apply even the Supreme Court dissenters in that case, like Justice Scalia found the Act didn't apply. In any event Judge Kavanaugh's dissenting opinion in the Seven Sky case is lengthy and one can garnish a lot of information about the Judge from it!



    The opinion holds a lot of evidence that Judge Kavanaugh is a far right wing ideologue. When a judge gives a legal opinion on a law a judge quite often gives a short synopsis of the law so to help the reader of the opinion better under the Judge's legal reasoning in the opinion. Judge Kavanaugh's synopsis of the ACA is so biased toward the right one would wonder if a party to a case seeking the upholding of the ACA would get a fair hearing. Whatever your political perspective about the ACA if your were fair you would recognize it was a health care bill that tried to help low and middle income Americans who were unable to afford or really struggled buying health insurance buy health insurance. Further, it was a bill that tried to pay for this meaningful help for people by being fair to all the entities in our society who have a role in this issue. Specifically, it looked toward employers that don't provide health insurance to their employees and considered that there is an economic unfairness there considering other employers are shouldering the economic burden of providing healthcare to their employees and when these employers don't provide this health insurance the federal government often has to step in and shoulder the economic cost vis-à-vis these ACA programs so Congress accesses a penalty against these employers for their failure to provide this benefit to help correct this unfairness. The ACA to further help on this funding problem did a Medicaid expansion which pulled in state governments to pay ten percent of the cost of this health insurance for those people that needed this insurance. Now the following is part of Judge Kavanaugh's description of the most important provisions of the ACA: "(1) an increase in federal spending, including through Medicaid, on health care for lower-income families and individuals; (3) a requirement that most employers provide health insurance to their employees or pay higher taxes than they otherwise would. (p. 24) This is vintage right wing perspective on the ACA, increase in spending and increase in taxes no consideration for the important policy objectives trying to be advanced in such government action!





    Judge Kavanaugh's troublesome ideology views are seen where he writes that he believes a President has the authority to ignore enforcing a provision of law he or she deems unconstitutional even if the Supreme Court finds it to be constitutional. (p.50) Judge Kavanaugh cites a U.S. Supreme Court opinion, Freytag, for this proposition although the statement in Freytag is not law its just dictum (it doesn't go to the holding of the case) and moreover the statement in Freytag didn't go as far as Judge Kavanaugh's statement it didn't include the condition that even if the Supreme Court finds the law constitutional the President has the authority to not enforce it based on his view that the law is unconstitutional, this is a major diminishment of the Supreme Court's power and check on Presidential power. This is extreme ideology and doesn't comport with most Americans views, most Americans believe America's form of government is a form of government where there is checks and balances between the three branches of government including the Executive and the Judiciary and this "checks and balances" system means that if the Supreme Court rules that a provision of law is constitutional the President is bound by that decision. Most Americans believe that it is the President's duty to enforce the law whether he likes it or not if the President thinks a law is a bad law or unconstitutional even though the Supreme Court has said otherwise the President has a recourse the recourse is to petition and work with Congress to enact a new law that changes the current law!



    Judge Kavanaugh revealed his right wing ideology bias when he wrote in his opinion "the theory of the individual mandate in this law is that private entities will do better than government in providing certain social insurance and that mandates will work better than traditional regulatory taxes in prompting people to set aside money now to help pay for the assistance they might need later". (p53) This is right wing let's privatize Social Security thinking. A fair and truthful analysis here would state that the theory of the individual mandate is to expand the enrollee pool in the state exchanges as much as possible to spread the cost of covering seriously sick people and so reduce the cost to exchange insurance caused by these sick people, in fact, it was a concession pushed by the health insurance industry back in 2009 to get them to support the ACA and its community pricing model!





    Judge Kavanaugh legal analysis in Seven Sky case was not of the highest caliber. The Judge takes exception with the majority's legal reasoning in so far as the majority believes another reason to find that the AINA doesn't apply in this case is because the executive branch position should be given deference to and the executive branch thinks it doesn't based on an accurate interpretation of the law and considering that allowing a lawsuit doesn't interfere with the orderly collection of taxes (p13-14). Judge Kavanaugh writes the majority here is essentially saying that courts can skip over the AINA issue when the executive branch says it doesn't apply. The Judge further writes the meaning of the majorities reasoning here is that the AINA is not a jurisdictional statute(p28). Judge Kavanaugh here is exaggerating the majority in its opinion is saying that the Executive Branches position should be given weight but is not calling for forsaking scrutiny of the Executive Branch's position a court is still charged with the duty of determining whether the AINA applies


    SEE PART TWO
     
  2. JimfromPennsylvania

    JimfromPennsylvania Active Member

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    PART TWO






    Judge Kavanaugh's in part rationale for finding the AINA applicable is if you allowed the mandate penalty to be legally challenged before it was assessed and collected unlike other tax penalties where the AINA bars such lawsuits the means of assessment and collection would be different in these cases because he reasons in the former case the taxpayer wouldn't be paying the tax until the Judge in the case rules in favor of the Federal Government; Judge Kavanaugh place great emphasis on the court order saying how this changes the means of assessment and collection of the penalty. Optimal good legal reasoning wouldn't consider the variable of a court order as changing the means, the means in both cases is the same the taxpayer files the tax forms in one case refiles the tax forms and pays the monies owed to the IRS.







    Judge Kavanaugh's in part rationale for finding the AINA applies because if you didn't apply it and you allowed the taxpayer to file the lawsuit challenging the penalty and the taxpayer wins the case the manner of the assessment and collection of the penalty in that case will be different than the manner of assessment and collection of penalties where the AINA applies where the taxpayer gets a refund if the penalty is found to be unconstitutional. (p 33) That is silly and nonsensical reasoning because if the taxpayer wins the case because the Judge finds the penalty to be unconstitutional as Judge Kavanaugh recognizes the IRS won't be doing any assessing and collecting of any penalty so there is nothing to compare here in reasoning one sometimes hears the phrase it's like comparing apples to oranges here its like comparing apples to nothing.



    In one major dispute between the majority in this case Judge Kavanaugh demonstrates questionable legal analysis. This dispute involves the following considerations. The ACA requires the mandate penalty to be "assessed and collected (p10-13) in the same manner as Chapter 68 Subchapter B tax penalties" 26 U.S.C. 5000A(g)(1). The majority thinks "in the same manner" here refers to the simple meaning of assessment and collection basically in essence recording the liability and taking in the monies owed; the majority sensibly believes what makes Chapter 68 Subchapter B penalties subject to the Anti-Injunction Act is the second sentence of the 26 U.S.C Sec. 6671(a) [this section of the tax code describes how these Subchapter B penalties should be handled]. This Sec. 6671(a) is comprised of two sentences; the first essentially says that these subchapter B penalties are to be assessed and collected in the same manner as taxes, the second essentially says any reference in the tax code to taxes is also deemed to be a reference to subchapter B penalties and liabilities. In the majority's view it is only this second catchall prescription that makes Subchapter B penalties subject to the AINA and since the ACA did not provide this second sentence prescription for the mandate penalty the mandate penalty doesn't get the AINA protection. Judge Kavanaugh analysis here is strange and abnormal it is not the thinking a great appellate judge would display. He says the first sentence is just a redundancy of the second sentence and than goes off giving examples of redundancy in the law. (p.36-38) Good legal analysis would not call the first sentence a redundancy it provides an important prescription on how the subject matter is to be treated and the second sentence expands how that subject matter should be treated on other issues. Judge Kavanaugh tends to claim to give different legal reasoning to support a finding when actually it is the same reason he used before he did it in this duplicity discussion when he fell back on his rationale that assessing and collecting in the same manner means the mandate penalty must be insulated from pre-enforcement suits.



    In this opinion Judge Kavanaugh shockingly cites prior Supreme Court cases as authority for a proposition of law that in fact the Supreme Court did not clearly actually provide a responsible assessment should be that here he is not exhibiting the character of a good appellate court judge. Judge Kavanaugh seeks to counter the majority's contention that the individual mandate penalty's purpose by Congress is not to raise revenue is not to fund the government so it does not fall under the purview of the Anti-Injunction Act which has as its purpose protecting the funding of government. Judge Kavanaugh specifically seeks to counter that reasoning by writing that the Supreme Court in the Bob Jones case held that regulatory taxes are covered by the AINA as long as they raise some revenue and he cites page 741 and page 743 of Bob Jones and another Supreme Court case Sonzinsky. (p 44-45). Actually the Supreme Court in Bob Jones didn't make that specific holding very interestingly what the Supreme Court said there was that exceptions to AINA jurisdiction bar will not be allowed for case s involving "truly revenue-raising tax statutes". Reasonableness in analyzing this case calls for the conclusion that the ACA is not a "truly revenue raising tax statute" it is a "health care regulatory statute". Further, the Sonzinsky case isn't even an AINA case its a taxing power case the issue being whether the Federal Government has the constitutional authority to require firearm dealers pay a $200 tax; the court in its opinion ruled the courts shouldn't look into the motives of Congress in enacting a tax. Looking into the purpose of a statute isn't the same as looking into the motives of Congress in enacting a statute Sonzinsky is not a relevant case!



    Although Judge Kavanaugh resolved this case on jurisdictional grounds and didn't address the constitutional issues behind the case he made some comments on the Commerce Clause issue that being Did the Federal Government have the authority to enact the individual mandate and penalty based on the Commerce Clause. The Federal Government reportedly conceded somewhat that if the Courts found the Congress had the authority to mandate individuals purchase this insurance product then Congress could mandate the individual purchase of a multitude of items. The problem I saw in Judge Kavanaugh's opinion he that he over blew the concern he over described the scope of the issue which is bad legal analysis. The government's contention on why the mandate and penalty are authorized by the Commerce Clause is that for those people in America that don't purchase health care in the aggregate they still consume a lot of health care hospitals' and health care providers' by law and for ethical and political reasons have to provide health care service to these people even though they end up not paying for it so these health care providers have to end up charging people that do have health insurance more for the services they use which ends up increasing the price of health insurance ( I believe the number bantered around in 2009 when the ACA was still a bill in Congress was uncompensated care cost the average family health insurance plan around one thousand dollars a year in increase in premiums). In any event Judge Kavanaugh essentially writes in his opinion if the Congress is found through the Commerce Clause to have this authority than the Congress will be able to mandate the purchase of retirement accounts. housing accounts, college savings accounts etc.. The logic doesn't follow people not purchasing such items isn't going to raise the price of those items for people purchasing them in many of these cases is the consumer even charged anything for such products! An aside note, I think a good Supreme Court could narrow this Commerce power of a Congress to solely mandate the purchase of the product of health insurance based on the rationale that this health insurance issue is very unique. For the Commerce Clause to apply the person has to be engaging in Commerce a S.C. could rule solely for meeting this requirement we are going to impute on everyone that they are engaging in the purchase of health care services because no one knows that they are not going to be seriously sick or ill at any moment of the day on any day and if they do it isn't really discretionary them purchasing health care services (they must it is often a life or death concern) and because health care is so expensive for most Americans it is unpurchasable without carrying insurance to pay the bulk of the bill so Congress mandating the purchase of it is justified!
     
  3. kazenatsu

    kazenatsu Well-Known Member

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    Technically he was correct. His opinion was based on a technicality in the law.
    It's not uncommon for the Supreme Court to try to find technicalities to avoid having to make a ruling on cases.

    Then there is the much broader issue of the Constitutionality of the ACA.
    My view on it is that is justified up to the point that it would hypothetically be justified for the government to collect a tax to pay for that thing people are being forced to buy. So in a sense, the real question is how expensive that thing is.

    Anyway, I suspect he may have realized his vote wouldn't have made a difference anyway.

    It was the principle of the thing, and a precedent could easily set a slippery slope for the future.
     
    Last edited: Aug 31, 2018
  4. Turtledude

    Turtledude Well-Known Member Past Donor

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    sounds like a really bogus reason to oppose the Judge. I wonder where this tome came from
     

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