You are correct. Kavanaugh made the Right call. Which was proven once Trump got rid of the Individual mandate.
Kavanaugh was equally critical of the individual mandate under the weak Taxing Clause argument advanced by the government and catastrophically accepted by the Supreme Court. Kavanaugh explained that “no court to reach the merits has accepted the Government’s Taxing clause argument,” thereby showing his agreement with all the courts of appeals that correctly found the mandate unsustainable under that clause.
The Taxing Clause, he continued, “has not traditionally authorized a legal prohibition or mandate,” which Obamacare plainly contained. Contrary to Jacobs’ revisionist history, Kavanaugh’s Taxing Clause discussion is thus the
opposite of a roadmap to upholding the statute under the Taxing Clause, as the Supreme Court ultimately did in its indefensible decision. Rather, Kavanaugh’s dismissal of the Taxing Clause argument is a roadmap to the conclusion reached
by the dissenters—that the individual mandate is unconstitutional under the Taxing Clause.
To be sure, Kavanaugh suggested that a different statute
without a mandate might pass muster under the Taxing Clause. But a statute
without the mandate would not be Obamacare; it would be an entirely different law. Kavanaugh’s hypothetical discussion of a different statute without a mandate could not be a roadmap to upholding the statute
with the mandate that was actually before the court.
A final point: Kavanaugh explained that waiting to resolve the challenge to Obamacare was not only required by law, but also the wise and judicially restrained course. There might never be a need to address the constitutionality of the mandate, he explained, because a future president (after the 2012 election) might choose not to enforce it. That suggestion triggered a furious response from liberal commentator Jeffrey Toobin in
The New Yorker.
Moreover, Kavanaugh warned that rushing to resolve the constitutionality of Obamacare in 2012, rather than respecting the statutory limitations on the court’s authority, could result in an error in judgment. Kavanaugh was right.....snip~
http://thefederalist.com/2018/07/03/...nted-unlawful/