Tag Archives: NFIB v. Sebelius

Roberts Turns Kavanaugh’s Taxing Power Hypo Into a Holding

In his dissent in Seven-Sky v. Holder, Judge Kavanaugh opined that the Affordable Care Act’s “shared responsibility payment” is a tax, and that it is therefore subject to the Anti-Injunction Act, which deprives the court of pre-enforcement jurisdiction over “any tax.” A majority of the Supreme Court (Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan) agreed with Judge Kavanaugh on the first point (that the mandate may be considered a tax) but disagreed with him on the second (that it is subject to the AIA).  The competing rationales behind these decisions reflect two different conceptions of judicial restraint. Continue reading

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