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July 10, 2018 at 02:54 PM
U.S. Circuit Judge Brett Kavanaugh — President Donald Trump’s pick to serve on the U.S. Supreme Court — sees himself as a judge who does his best to determine what the drafters of legislation meant, and to apply the legislation as they intended for it to apply.
Kavanaugh, 53, was born in Washington. He earned his bachelor’s degree and law degree from Yale.
President George W. Bush appointed Kavanaugh to serve as a judge on the U.S. Court of Appeals for the District of Columbia Circuit in 2006.
Some of Kavanaugh’s opinions, and dissenting opinions, have dealt with cases of interest to insurance agents and brokers, including cases relating to matters such as financial professional discipline, health insurance company acquisitions, the constitutionality of the Affordable Care Act, Medicare program administration, pension benefits disputes, and the structure of the Consumer Financial Protection Bureau.
(Related: Anthem Loses D.C. Circuit Bid to Revive Cigna Merger)
Here’s a look at some of what Kavanaugh said about seven cases that could affect producers in the life insurance, health insurance and annuity markets.
1. Saad v. SEC: Financial professional discipline
This case dealt with the procedures the U.S. Securities and Exchange Commission and the Financial Industry Regulatory Authority (FINRA) used when it disciplined a financial professional. The financial professional, who was associated with a Penn Mutual Life Insurance Company broker-dealer affiliate, was accused of misappropriating employer funds.
One question was whether a lifetime expulsion from the securities industry was “remedial” in nature or “punitive” in nature.
Kavanaugh wrote in 2017, in a concurring opinion, that lifetime bars are punitive, rather than remedial, meaning that the FINRA and the SEC should “have to reasonably explain in each individual case why an expulsion or suspension serves the purposes of punishment and is not excessive or oppressive.”
“FINRA and the SEC will no longer be able to simply wave the ‘remedial card’ and thereby evade meaningful judicial review,” Kavanaugh wrote.
2. United States of America et al. v. Anthem Inc. and Cigna Corp.: Antitrust
The court ruled in this case, in 2017, that federal antitrust regulators had the authority to block efforts by Anthem to acquire Cigna.
Kavanaugh wrote, in a dissenting opinion, that he believed Anthem complete the Cigna deal would have helped the companies’ large-employer health plan customers, rather than hurting them.
The combined company might have charged employers more for its health care cost negotiation and management services, “but the record overwhelmingly demonstrates that the cost savings to employers would far exceed any increased fees paid by employers,” Kavanaugh wrote.
3. Susan Seven-Sky et al. v. Eric Holder Jr. et al.: Affordable Care Act constitutionality
In this case, the appeals court agreed, in a ruling issued in 2011, with a district court determination that the ACA individual coverage mandate was constitutional. The mandate provision imposes a penalty on many people who fail to have what the government classifies as solid major medical coverage.
Kavanaugh wrote in a dissenting opinion that the court had no jurisdiction over the case because, in his view, the ACA individual coverage mandate penalty was a tax, and because the federal Anti-Injunction Act usually prohibits pre-enforcement suits that could restrain the assessment or collection of a tax.
“As the court has stressed time and again, although the act may seem an inconvenient technicality in the context of a particular case, it is essential to the overall system of orderly and prompt federal tax administration,” Kavanaugh wrote.
The U.S. Supreme Court eventually cited the Anti-Injunction Act when it blessed Internal Revenue Service efforts to proceed with efforts to impose the penalty.
4. Brian Hall et al. v. Kathleen Sebelius and Michael Astrue: Medicare Part A
