Daniel Horowitz wrote an excellent piece at the Conservative Review that Mark Levin suggested reading. I made a special effort to catch Levin’s program as I was curious as to Mark’s take on the SCOTUS pick. The big concern was Kavanaugh starting the ball rolling with the Obamacare as a tax. I suggest wandering over to the Conservative Review for a balanced view and thoughts on the judiciary.
The full podcast is out there at Levin’s website and on YouTube if you want the full thing. I agree with Mark. Let’s ask some questions. Must we follow and support blindly? Or can we raise questions without feeling disloyal to Trump?
Below are some points:
Here are several concerns that conservatives should research thoroughly throughout the confirmation process and Kavanaugh’s meetings with senators:
- Obamacare regulation as a tax: In Seven-Sky v. Holder (2011), Kavanaugh wrote a dissent opining that the individual mandate of Obamacare could not be challenged in court because, under the Anti-Injunction Act of 1867, no lawsuit can be brought until the plaintiff actually was forced to pay the tax, which in this case wasn’t for another few years. I’m a big stickler for courts staying in their lane and properly abiding by rules of standing, but in this case his entire rationale was built upon a dangerous premise that a government mandate/penalty was really a tax. This served as the basis for John Roberts’ infamous opinion upholding Obamacare.
- Endless standing to rip God out of the public square: In Newdow v. Roberts, an infamous atheist sued to take the words “so help me God” out of the presidential oath of office. Aside from it being insane to suggest this violates the Establishment Clause, the notion that a random person could get standing to sue and that this is even a justiciable case violates the very essence of what distinguishes a court from a legislature. It lies at the core of what is allowing the ACLU to shut down our civilization for years with radical forum-shopped lower courts. While, in his separate opinion, Kavanaugh ruled the right way on the Establishment Clause, he held that the plaintiff indeed had valid standing to sue as “offended observers.” This is the type of nonsense that is plaguing public prayer and display of the Ten Commandments across the country. It is simply astounding for any originalist to disagree with other justices in granting such standing and is very consequential for cases that will reach the Supreme Court soon. Kavanaugh hid behind Supreme Court precedent, but admitted that the high court never directly addressed the issue of this type of standing.
These rulings taken together, Kavanaugh is essentially saying that a random atheist with an obscure and abstract claim against a presidential oath can get standing, but individuals directly forced to purchase a private product and engage in commerce couldn’t get standing.
- Contraception as a “compelling government interest”: Almost every circuit upheld Obamacare’s contraception mandate. Like most of the originalist judges, Kavanaugh dissented from these opinions and sided with plaintiffs in Priests for Life, which is good. But what is still puzzling is that he gratuitously and explicitly conceded that the government has “a compelling interest in facilitating women’s access to contraception.” While the Supreme Court did assume that the government might have a general interest in promoting contraception, the court never assumed, much less ruled, that such an interest would apply to the narrow subset of employees at religious institutions. The fact that he didn’t join the stronger dissent from Judges Brown and Henderson – built upon the premise that the government must find a compelling interest specifically in mandating “seamless” coverage – raises concerns that we won’t see him categorically opposing the Left on these issues and joining Thomas on the court.
- Immigration: Immigration is perhaps the most important issue winding through the courts now, and most of the nominees had thin records on the issue. I haven’t seen anything big on the fundamental issues of the plenary power doctrine, for better or worse. However, as we reported last year, the D.C. Circuit absurdly granted an illegal alien the right to demand access to an abortion. While Kavanaugh rightly dissented on the grounds that the opinion drastically expanded abortion jurisprudence, he declined to sign on to Judge Karen Henderson’s indispensable dissent, finally laying down the law on sovereignty and the plenary power doctrine. That was a much-needed dissent, given what is going on throughout the circuits on immigration, and it is a bit peculiar that he didn’t sign on to that dissent, while Henderson signed onto Kavanaugh’s dissent tackling the abortion angle.
“At least he’s a lot better than the other side” is no longer good enough. If we are going to accept the premise, as the president himself did last night, that “The Supreme Court is entrusted with the safeguarding of the crown jewel of our Republic, the Constitution of the United States,” we can’t afford to settle for anything less than the best. The aforementioned concerns notwithstanding, conservatives should be happy with much of Kavanaugh’s record but should look a little deeper before jumping in with both feet.
Full thing at Conservative Review