Illustration by Tom Bachtell

Brett M. Kavanaugh is a judge who sits on the United States Court of Appeals for the District of Columbia Circuit, which is often described as the second most important court in the country. President George W. Bush nominated Kavanaugh to that post in 2003, when he was just thirty-eight years old, but the judge’s renown dates back to a few years before that. Kavanaugh was a protégé of the former Independent Counsel Kenneth Starr, and a principal author of the Starr Report, the investigative bodice ripper that transfixed the reading public in the autumn of 1998. As a prosecutor, Kavanaugh set a bracing literary standard (“On all nine of those occasions, the President fondled and kissed her bare breasts . . .”), but his work as a judge may be even more startling.

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.

In the nineteen-nineties, during Kavanaugh’s first brush with prominence, it was said that some conservatives suffered from Clinton derangement syndrome—an obsessive belief that the President and the First Lady had committed every misdeed that was attributed to them. (Hillary Clinton was involved in Vince Foster’s death; Bill Clinton had trafficked narcotics through Mena, Arkansas; and so on.) Kavanaugh’s bizarre opinion confirms that a contemporary analogue to the Clinton malady has taken hold: health-care derangement syndrome.

The legal challenges to ACA, which the Supreme Court will hear next week, center on its key provision, the individual mandate. The mandate essentially requires all adults to obtain health insurance, either through their employers or by buying it themselves. (There will be subsidies for those who cannot afford it.) The idea of a health-insurance mandate first came to wide public notice in 1989, in the form of a proposal from the Heritage Foundation, one of Washington’s venerable right-wing think tanks. In subsequent years, the idea was embraced by a variety of politicians, mostly conservatives, including Newt Gingrich and Orrin Hatch. In Massachusetts, of course, Governor Mitt Romney made it the centerpiece of his health-care-reform plan. For decades, no one suggested that an individual mandate was unconstitutional.

This was understandable. The principal constitutional justification for the individual mandate is the Commerce Clause, which gives Congress the right to regulate commerce among the states. The meaning of this provision has been settled since shortly after the New Deal. The Court has said repeatedly that Congress has the right to regulate economic activity even if it takes place only within a state. (This makes sense because intrastate transactions invariably affect the national economy.) The Court has said, too, that Congress can regulate the decision to refrain from engaging in a transaction. In the famous case of Wickard v. Filburn, from 1942, the Court upheld the government’s decision, as part of its effort to stabilize agricultural prices, to enforce a production quota on a wheat farm in Ohio. The farmer, Roscoe Filburn, exceeded his quota, but only, he said, for his own use. That meant, however, that he was likely to buy less wheat on the open market. The Court held that actions like Filburn’s, taken collectively, affected the national economy, and so were within the commerce power of Congress.

The main argument that opponents of the health-care law have come up with is that the mandate regulates economic inactivity—i.e., not buying insurance—and the Commerce Clause allows only the regulation of economic activity. In the first appellate review of the law, last summer, the Sixth Circuit demolished that argument. The court pointed out that there are two unique characteristics of the market for health care: “(1) virtually everyone requires health care services at some unpredictable point; and (2) individuals receive health care services regardless of ability to pay.” Thus, there was no such thing as “inactivity” in the health-care market; everyone participates, even if he or she chooses not to buy insurance. Indeed, the choice to forgo insurance imposes a direct cost on the taxpayers, who wind up footing the bill. Those choices by consumers, especially in the aggregate, represent an economic matter that Congress may decide to regulate.

The precedents supporting the constitutionality of ACA haven’t changed, but the federal judiciary, including the Supreme Court, has. As in the Senate, moderate Republicans held sway for years at the Supreme Court, but that species has vanished on both sides of First Street. The likes of Lewis Powell and Sandra Day O’Connor have been replaced by the likes of John Roberts and Samuel Alito. In order to strike down health-care reform, the new Republican Justices would have to change the underlying constitutional law, which they have proved themselves more than capable of doing. They have already cut a swath through the Court’s precedents on such issues as race, abortion, and campaign finance, and it’s possible that they will assemble the votes to do the same on the scope of the Commerce Clause. The high-stakes health-care case is a useful reminder of the even higher stakes in the Presidential election. If a Republican, any Republican, wins in November, his most likely first nominee to the Supreme Court will be Brett Kavanaugh. ♦