Last Friday, one day after the Justice Department filed a brief refusing to defend the Affordable Care Act, a senior DOJ attorney with over 20 years of experience at the department resigned in an apparent act of protest. The lawyer, Joel McElvain, was one of three career lawyers who withdrew from the case rather than signing their name to the Trump administration’s arguments — a highly unusual move by career Justice Department officials.
Then, on Tuesday of this week, the top Republican on the Senate committee overseeing health care also dumped cold water on the Trump administration’s effort to undercut Obamacare through litigation. “The Justice Department argument in the Texas case is as far-fetched as any I’ve ever heard,” Sen. Lamar Alexander (R-TN) said in a statement.
He’s not wrong.
Indeed, on this occasion, even Senate Majority Leader Mitch McConnell (R-KY) appeared unamused by the Trump administration’s antics. The crux of the Trump DOJ’s arguments in this matter is that various provisions of the Affordable Care that currently protect people with preexisting conditions must be repealed by a federal court. McConnell spoke out against this, claiming with no small amount of confidence that no one in the Senate supported this agenda.
“Everybody I know in the Senate — everybody — is in favor of maintaining coverage for pre-existing conditions,” said McConnell. (This is, of course, a lie.)
Set aside, for a moment, the fact that McConnell’s statement is untrue — and that most Senate Republicans supported legislation as recently as last fall that would have allowed insurance companies to charge so much to some people with preexisting conditions that these individuals would not longer be able to afford insurance. The fact that McConnell feels the need to distance himself from the Trump administration’s legal arguments is highly significant, as is Alexander’s stronger statement against the lawsuit.
Historically, lawsuits attacking Obamacare — even suits that rely on exceedingly weak legal arguments — performed well before Republican-appointed judges when conservative elites rally behind those arguments. If Republican leaders continue to distance themselves from this latest round of anti-Obamacare arguments, however, it is much more likely that this latest attack on the Affordable Care Act will die long before it reaches the Supreme Court.
Triumph of the stupid
This latest legal assault on Obamacare began with a legal complaint filed last February by a group of 20 Republican governors and attorneys general. The case is Texas v. United States.
The Texas plaintiffs rely on a two-part argument, the first part of which is plausible but largely academic, and the second part of which is frivolous.
As originally enacted, the Affordable Care Act requires most American to either carry health insurance or pay higher income taxes. This is the law’s “individual mandate,” and it encourages people to buy health insurance before they become sick. In NFIB v. Sebelius, the Supreme Court upheld this individual mandate as a valid exercise of Congress’ power to tax.
Then, in 2017, the Trump tax law effectively repealed this individual mandate. Though the 2017 legislation leaves in place most of the Affordable Care Act’s language establishing an individual mandate, it reduces the amount of the tax to zero — thus rendering the mandate a nullity.
The first part of the Texas plaintiff’s argument is that the lifeless husk of the mandate that now remains is unconstitutional. Though the mandate now does absolutely nothing, the law still contains language providing that most Americans “shall” obtain health coverage. NFIB held that this language is permissible because it was an exercise of Congress’ power to tax, but the zeroed-out mandate no longer functions as a tax. So the neutered language that remains is now unconstitutional, according to the plaintiffs.
This part of the plaintiffs’ argument is non-frivolous. But, as health law expert Nicholas Bagley writes, “who cares, honestly?” The practical impact of a court decision striking down a legal provision that has already been rendered inoperative is absolutely nothing. Zero times zero equals zero.
Except that the Texas plaintiffs layer another, entirely frivolous claim on top of their argument.
When a court strikes down part of a federal law, it often asks whether other, constitutional provisions of the law must fall along with the unconstitutional provision — this inquiry is known as “severability.” Severability is a speculative inquiry. It asks which law Congress would have passed if Congress had known that it lacked the power to enact the one provision that was just struck down.
Yet, as the Supreme Court recently explained in Murphy v. National Collegiate Athletic Association, courts should apply a strong presumption against striking down additional provisions of a law just because a separate provision was just found unconstitutional. “In order for other . . . provisions to fall,” the Court explained, “it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”
In Texas, this severability inquiry is exceedingly easy. Even if you assume that the inert mandate is unconstitutional, courts do not need to speculate which other provisions Congress would have wanted to strip away because Congress already answered this question. In 2017, Congress effectively repealed the individual mandate while leaving the rest of Obamacare intact. That’s conclusive evidence that Congress preferred to leave the rest of Obamacare intact.
Nevertheless, both the Texas plaintiffs and the Trump administration want courts to ignore Congress’ clear intent. The plaintiffs make the audacious argument that the entire Affordable Care Act must fall if courts strike down a single, toothless provision. The Trump administration makes the slightly less audacious, but still quite ridiculous, claim that provisions requiring insurers to cover people with preexisting conditions must fall.
Again, it is worth underscoring: These are not good legal arguments. Indeed, if this case were being heard by an ordinary judge, then the lawyers arguing against Obamacare might want to familiarize themselves with their legal obligation to only present arguments to a federal court which are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”
Unfortunately for the millions of Americans who would lose their health coverage if this lawsuit prevails, however, the Texas plaintiffs have an ace in the hole.
In many federal courts, litigants can choose which judge they want to hear a case by filing the case in a geographic region where that jurist is the sole federal trial judge. In this case, the Texas plaintiffs filed in the Northern District of Texas’ Fort Worth Division, a division with only two active judges. One of those judges is Reed O’Connor, a Republican former Capitol Hill staffer with a history of handing down anti-LGBTQ decisions based on dubious legal reasoning. In a stroke of luck for the Texas plaintiffs, O’Connor was assigned this case.
The Texas plaintiffs appear to be betting that O’Connor will view Obamacare with the same skepticism he views LGBTQ rights — and that he will show a similar willingness to manipulate the law to achieve conservative ends. If he does, O’Connor could hand down a decision striking the entire Affordable Care Act later this year.
What happens next could matter a great deal.
It’s easy to forget, after a tense June of 2012 which culminated in four justices voting to repeal the entire Affordable Care Act in NFIB v. Sebelius, but the plaintiffs’ legal arguments in that case were widely viewed as meritless. An American Bar Association poll of “a select group of academics, journalists and lawyers who regularly follow and/or comment on the Supreme Court,” which was taken shortly before NFIB was argued, found that 85 percent expected the Court to uphold Obamacare on the merits, and another 9 percent expected the Court to kick the case on jurisdictional grounds.
Three years later, most legal experts were even more skeptical of the legal theory behind King v. Burwell, a lawsuit arguing that a single provision of the Affordable Care Act must be read out of context to give Republican state officials the power to sabotage much of the law. Yet, after two Republican federal appellate judges embraced this legal theory, the lawsuit gained new life. Ultimately, three members of the Supreme Court agreed that Congress wrote a self-destruct button into the Affordable Care Act and placed this button in the care of red state officials hostile to Obamacare,.
The lesson of both cases is that meritless legal arguments can morph into a very serious threat to a law when legal and political elites rally behind those arguments.
As the Yale Law School’s Jack Balkin wrote about NFIB, “the idea that the Act’s mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy.” Yet this argument moved from “off the wall” to “on the wall” largely because so many high-level conservative validators embraced it.
Arguments move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument. Moreover, it matters greatly who vouches for the argument — whether they are well-respected, powerful and influential, and how they are situated in institutions with professional authority or in institutions like politics or the media that shape public opinion.
The wave of Republican elected officials, prominent pundits, and conservative legal elites who vouched for the arguments in NFIB gave cover to Republican judges who disliked Obamacare but may not have wanted to appear excessively political. It may even have caused those judges to engage in motivated reasoning, convincing them that the arguments they wanted to be valid were, in fact, valid.
For the moment, at least, some important members of the Republican coalition are not willing to “put their reputations on the line” to bolster the Texas litigation. Indeed, both Alexander — who said that “there’s no way Congress is going to repeal protections for people with pre-existing conditions who want to buy health insurance” — and McConnell, who falsely claimed that Republicans universally are in “favor of maintaining coverage for pre-existing conditions,” directly contradicted the Trump administration’s arguments in Texas.
It’s hard to argue that Congress would prefer a law that doesn’t protect people with preexisting conditions when top Republican leaders make the opposite claim.
Just as importantly, some very important conservative legal elites, at least for the time being, care more about preserving their reputations than they do about propping up the Texas litigation.
As both NFIB and King were making their way through the federal courts, a site known as the Volokh Conspiracy — a highly influential conservative legal blog that is widely read by legal elites — became a hub for arguments promoting the two suits. Indeed, Obamacare opponents recruited Randy Barnett, a Volokh Conspriacy blogger, to be one of the leading evangelists for NFIB despite the fact that Barnett was initially skeptical of the legal arguments at the heart of that case.
This time around, however, the Volokh bloggers aren’t biting. Ilya Somin, a Volokh blogger and libertarian law professor, wrote a lengthy piece poo pooing the Texas plaintiffs’ severability arguments shortly after the suit was filed. Earlier this week, Jonathan Adler, another professor and Volokh blogger who was one of the leading cheerleaders for the King litigation, wrote a similar piece criticizing the Texas plaintiffs’ arguments.
Should conservative elites remain divided about the Texas case, then that is a good sign that this suit could die quickly — potentially in the court of appeals. But there is also no guarantee that conservatives won’t rally behind the lawsuit, especially if Judge O’Connor treats this case the same way he’s treated LGBTQ rights cases.
Elected officials like McConnell and Alexander could change their tune. Writers like Adler could announce that they were “convinced” by O’Connor’s opinion. Conservative gatekeepers like the Federalist Society, which plays a major role in picking Trump’s judicial nominees and shaping conservative legal opinion, could promote the work of pro-Texas hacks while disfavoring conservatives who refuse to toe the party line. Fox News could celebrate the lawyers behind Texas as heroes, while giving air time to primary challengers targeting Republican officials who speak out against the lawsuit.
And, of course, while some Republican elites appear bothered by this lawsuit, many key players in the GOP coalition are on board with it — including the Trump administration.
In the end, the Texas plaintiffs are still unlikely to prevail. Chief Justice John Roberts — with whom this buck will ultimately stop — made it abundantly clear in his King v. Burwell opinion that he is sick and tired of politically motivated lawsuits attacking Obamacare using dubious legal arguments. Nevertheless. the law’s supporters could have two very stressful years before Roberts gets around to reversing the lower court decisions repealing the Affordable Care Act.
And don’t forget: There’s always a danger that Trump could change the makeup of the Supreme Court.