Thread by @mfcannon

1. Judge Brett #Kavanaugh is on @realDonaldTrump's short list to replace Anthony Kennedy on #SCOTUS. In #HallvSebelius (2012), he issued a bizarre ruling that allowed exec agencies to usurp Congress' legislative powers & delayed desperately needed #Medicare reform. @CatoInstitute

@realDonaldTrump @CatoInstitute 2. I have a history with #HallvSebelius (en.wikipedia.org/wiki/Hall_v._S…). I published the @CatoInstitute study (object.cato.org/pubs/pas/pa601…) that caught Hall’s eye. I introduced him to the author, who became his attorney. I may have referred another plaintiff (a Cato board member), etc.

@realDonaldTrump @CatoInstitute 3. Background: SSA wrote an internal doc saying anyone who declines #Medicare forfeits all @SocialSecurity benefits & must return any already received. Fed law neither creates nor implies such a rule, neither authorizes nor implies SSA can create it, and SSA didn’t follow #APA.

@realDonaldTrump @CatoInstitute @SocialSecurity 4. The #HallvSebelius plaintiffs (Ps) asked the court to invalidate the SSA’s internal document/rule as contrary to statute and the #APA, so Ps could continue to receive @SocialSecurity benefits despite not enrolling in #Medicare.

@realDonaldTrump @CatoInstitute @SocialSecurity 5. In his ruling (cadc.uscourts.gov/internet/opini…), however, #Kavanaugh pretended Ps requested something very different: “a legal declaration that the Government cannot pay Medicare Part A benefits on their behalf.” That's not what the #HallvSebelius plaintiffs requested. At all.

@realDonaldTrump @CatoInstitute @SocialSecurity 6. Answering a question nobody asked, #Kavanaugh found no provision in fed law allows @HHSgov to declare that it *cannot* pay Medicare benefits to an eligible individual. He ruled against Ps because (his mangling of) “plaintiffs’ position is inconsistent with the statutory text.”

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 7. Dissent quoted Ps' reply brief to show #Kavanaugh completely misstated their argument: "[We] never suggested [we] sought to renounce [our] entitlement to Medicare [and] did not contend that the [govt] must allow [us] to...somehow declare [we] are not entitled to Medicare”

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 8. Dissent also chided #Kavanaugh’s “silence on the sole question in this case.” Protesting that they lost on "an issue that was not even before the Court," Ps requested an en banc rehearing. #Kavanaugh responded Ps’ petition “appears to reflect some misunderstanding” of ruling.

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 9. Dissenting judge (Henderson) shot back: “Any disconnect between the panel majority opinion and the plaintiffs' petition is the consequence of the opinion's own avoidance of the sole issue in this case” (#HallvSebelius).

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 10. Again, dissenting judge (Henderson) chided #Kavanaugh: “Like a parent who yells ‘get in the game’ to his child picking daisies in the outfield, the plaintiffs ask the court to ‘get in the game’ and finally address the issue it ignored” in #HallvSebelius.

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 11. Full #CADC denied en banc rehearing in #HallvSebelius. Ps petitioned #SCOTUS for cert. My @CatoInstitute colleagues filed a brief in support (object.cato.org/sites/cato.org…). SCOTUS denied.

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 12. I’m ambivalent about the actual relief the #HallvSebelius plaintiffs were requesting. They were, after all, trying to make @SocialSecurity benefits easier to get. #Kavanaugh’s ruling was nevertheless immensely disappointing, for three reasons.

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 13. First, #Kavanaugh didn’t address the #HallvSebelius plaintiffs’ actual arguments. Who wants to have their case heard in THAT judge’s court?

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 14. Second, #Kavanaugh’s ruling in #HallvSebelius allowed unelected, executive-branch bureaucrats to just make up a rule binding two entitlements together—the sort of rule the Constitution only allows Congress to write. Judges should police Article I more closely.

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 15. Third, the unconstitutional rule #Kavanaugh upheld in #HallvSebelius is an attempt by govt bureaucrats to make all Americans dependent on #Medicare by punishing anyone who disenrolls. Reform could take years or decades longer thanks to Kavanaugh's inattention to Article I.

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 16. The most charitable interpretation of #Kavanaugh’s #HallvSebelius ruling is that he sees “entitled” as meaning not that an individual *may* choose to receive a govt benefit, but than an individual *must* receive that benefit. That’s still not very charitable. I dissent.

@realDonaldTrump @CatoInstitute @SocialSecurity @HHSGov 17. I don't know if #Kavanaugh is better or worse than the other judges on Trump's short list for #SCOTUS. But his disappointing ruling in #HallvSebelius needs to be part of the conversation. Fin.