“Know your role.” Before Dwayne Johnson’s real name was popularly known, his wrestling persona “The Rock” coined the catchphrase. We could probably heed his advice in the public sphere.
One of the details seemingly lost in the tales full of sound and fury — ultimately signifying naught — related to Judge Brett Kavanaugh’s nomination to the Supreme Court is the fact that he effectively voted to uphold the Affordable Care Act. If I told you last year that Donald Trump would choose a new Supreme Court justice who approved of President Barack Obama’s signature legislative achievement, well, the sound would be laughter and the fury nonexistent.
Now, his ruling was not that Obamacare was a good idea. Or that he thought it a sustainable, effective reform to the American healthcare apparatus. Rather, he decided that Congress had prevented judges from ruling on the issue at that time. To reach that conclusion, he had to determine the Affordable Care Act’s “individual mandate” was a tax, which is something Congress is permitted to levy.
If that all sounds like gobbledygook, it probably is. So I’ll try to break it down.
In 1867, the Congress of the United States passed a law known as the “Anti-Injunction Act.” It provided that, when it came to individuals suing the government about taxes, courts could not hear the case until the taxpayer actually paid the tax. The law was meant to keep the federal treasury flush, rather than letting tax protesters cripple the operation of government by depriving it of funds.
Setting the limits of authority of courts — their “jurisdiction” — was a role of Congress. The Constitution provided them with that authority, subject to certain limits.
So, when it came to the Affordable Care Act, there were some questions. Many people — including Obama — argued the payments to Washington required under the law if you did not have insurance were not a “tax,” but a “fine” or “penalty.” But when it came to the lawsuit challenging Obamacare, the defenders advanced the legal argument that president’s statements were irrelevant; the entire ACA was a valid exercise of the taxing power entrusted to Congress under the Constitution.
If you bought that explanation, the 151-year old Anti-Injunction Act comes into play and the courts were prevented from hearing that argument. Kavanaugh was a buyer, as was — ultimately — Chief Justice John Roberts.
That is the thing about being a judge. Contrary to popular belief, they don’t, or at least shouldn’t, make up law to fit the reality they hope for. A good jurist will heed the advice of The Rock, and know their role.
Congress should do the same. For all the breathless coverage about Kavanaugh’s allegedly shocking writings, there is some sound logic behind them. One example surrounds his commentary on criminal liability for presidents. Kavanaugh suggests that a president may have immunity from criminal prosecution while in office.
Why? Because the president is the head of the executive branch, with the imprimatur of the American electorate, and those responsible for enforcing criminal law — executing it — are subordinates in his (or her) branch of government.
It makes sense. The sergeant cannot fire the colonel or hold him formally accountable; that requires his superior, the general. The same occurs in any other organization. Mid-level managers cannot fire the CEO; the board needs to do that.
With our system of government, the three branches are co-equal; their “boss” is the people, but we only act occasionally at the ballot box. So to address wrongdoing between elections, Congress has the authority to act through impeachment. If they refuse to do so, call it prosecutorial discretion. That choice of elected officials probably should not be overridden by a presidential subordinate.
As Kavanaugh proceeds through the confirmation process, this is worth keeping in mind. He supported Congress’ authority by indicating the ACA was a valid exercise of their taxing power. He suggests it is their authority, spelled out by the Constitution, which holds presidents accountable. Importantly, Kavanaugh knows it is not his job in the judiciary to tell them how to do theirs in the legislature.
Congress would do well to take Johnson’s advice and know their role. And if they don’t want to do their job and just wrestle over it all? Well, then maybe it is time to send The Rock to Washington.