This includes the Department of Health and Human Services (HHS), which is the agency that largely carries out health care initiatives. Kavanaugh’s opinion on the administrative state is key to understanding his approach to health care policy and initiatives.
In the 122 cases related to the administrative state he handled during his tenure on the D.C. Circuit, Kavanaugh demonstrated a largely conservative outlook. This is most easily seen in the string of cases in which he supported limiting the Environmental Protection Agency’s regulations and oversight. In these cases he objected to the EPA extending its authority, under the Clean Air Act, to regulate the greenhouse gas emissions of power plants, among other things.
In this regard, he is a classic conservative judge, interested in shrinking the government bureaucracy and reducing the regulatory burden on businesses.
This brings us to the two high-profile cases Kavanaugh ruled on related to the Affordable Care Act (ACA).
In 2011, in Seven-Sky v. Holder, he upheld the ACA’s individual mandate. He argued that the individual mandate should remain in place because it was a tax-related matter, writing:
deciding the constitutional issues in this case at this time would contravene an important and long-standing federal statute, the Anti-Injunction Act, which carefully limits the jurisdiction of federal courts over tax-related matters.
While this conclusion may seem very in-the-weeds, it reflects his long-standing view that judges should act as umpires, and avoid relying on their own policy preferences. At a certain level this is a reasonable position, as policy-making is supposed to rest with the legislative branch (though deciding which actions are “umpire-like” can reflect deeply held policy preferences).
In a 2015 case, Sissel v. U.S. Department of Health and Human Services, Kavanaugh concluded that the ACA did, indeed, originate from the House of Representatives, complying with the Constitutional requirement that all revenue raising bills begin in the House and not the Senate.
Some analysts have interpreted these two decisions as a sign that Kavanaugh is sympathetic to the ACA, and perhaps more liberal on health care issues than on other regulatory topics.
But I am not so sure. How do we reconcile Kavanaugh’s overall track record on administrative cases, which is clearly conservative, with his theories on health law?
The key may lie in his dissent in a 2017 case, United States Telecom Association v. Federal Communications Commission. In the dissent, Kavanaugh argued that if someone challenges a regulation that exceeds the scope of its legal authorization, the regulation should be presumed invalid if Congress has not spoken on the matter, and the question is one of deep economic and political significance.
Stated otherwise: Kavanaugh expects Congress to say explicitly when it wishes to assign decisions of economic and political significance to any federal agency. Otherwise, a federal agency — such as HHS — should stay in its lane and does not have the authority to interpret the intent of legislation.
Without an explicit mandate from Congress, Kavanaugh would say an agency is at risk of overreaching its authority.
In his health law decisions, Kavanaugh found that Congress explicitly authorized the challenged portions of the ACA. It's likely he would uphold health law regulations, as long as there is explicit Congressional authorization to do so.
Source : http://www.wbur.org/cognoscenti/2018/07/12/health-care-brett-kavanaugh-carmel-shachar638