Saturday, December 29, 2018
"The last time Chief Justice John Roberts took it upon himself to write the opinion fending off a challenge to the Affordable Care Act, he seemed to signal that he was done entertaining existential threats to the law.
“In a democracy, the power to make the law rests with those chosen by the people,” he wrote in King v. Burwell in 2015. “Our role is more confined — to say what the law is. That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done.”
His message was quite clear: Stop trying to get us to blow up Obamacare. If you don’t like it, go see Congress.
That should have been the end of it. But earlier this month a federal judge in Texas went where Congress was unwilling to go and ruled that an individual mandate without teeth means that the entirety of the Affordable Care Act is unconstitutional — under a theorythat legal scholars across the ideological spectrum have found, for lack of a better word, ridiculous. The judge, Reed O’Connor, has a record of ruling against Democratic policies. This time he said the A.C.A.’s individual mandate cannot be separated from the rest of the law — and so all of it, down to Obamacare’s minutest detail, must go.
Now there’s a real possibility that the Supreme Court may yet again be faced with a demand to settle the fate of the law.
One way the Supreme Court can avoid getting dragged into another drama over health care is if the appeals court set to review the Texas ruling, the United States Court of Appeals for the Fifth Circuit, finds grounds to reverse it. That would give the justices cover to duck the issue altogether by declining to review whatever the Fifth Circuit decides.
But one of the few accomplishments of President Trump’s first two years in office has been the appointment of conservative judges to federal appellate courts. In the Fifth Circuit alone, already very conservative, President Trump has placed five right-leaning judges.
So there’s a chance that the entire Fifth Circuit will end up affirming the Texas ruling.
And with more judges jumping on board, suddenly a legal theory that should have been doomed from the start will have attracted enough credibility to force the Supreme Court to weigh in and have the final say. Again.
The effects of Judge O’Connor’s ruling, if upheld, could be devastating, including a sharp rise in the number of uninsured and a substantial weakening of coverage guarantees.
This is a repeat of what happened in 2010 and 2013, as long-shot challenges to Obamacare that were once largely academic gained traction in the lower courts. And, with that, something else happened: Politicians began rallying behind the lawsuits. The media covered the cases. Legal academics debated and wrote about the disputes. The public started paying attention. Before long, the cases slithered their way to the nation’s highest court.
Jack Balkin, a professor at Yale Law School, calls this the off-the-wall/on-the-wall theory of constitutional change. “The history of American constitutional development, in large part, has been the history of formerly crazy arguments moving from off the wall to on the wall, and then being adopted by courts,” Mr. Balkin wrote in an article in The Atlantic in 2012, as the Supreme Court was readying its first big ruling on Obamacare.
In Mr. Balkin’s view, the reason that seemingly bizarre legal arguments reach the mainstream is that politicians and others in power get behind them. Yes, support from the academy or from social movements moves the needle as well. But it is only when political actors — parties, elected officials, institutions — speak in favor of a position that it stands a chance of being taken seriously by the courts.
So it matters that attorneys general and officials from Texas and 19 other states brought the latest lawsuit. And that the Trump administration, which otherwise has a duty to defend duly enacted laws, agreed with the shakiness of their argument. Now a federal judge has given the green light, and Mr. Trump is loving it. Soon the Fifth Circuit will get a bite at the apple.
For now, nearly every actor with a stake in this controversy is in agreement that Obamacare should stay put while the ruling gets sorted out.
A day after the new ruling, Professor Balkin applied his off-the-wall/on-the-wall theory to the circumstances of this case. “I have seen this movie before,” he wrote in his popular legal blog, Balkinization. But he added that aside from victory laps from Mr. Trump and a few other Republicans, the response this time around is much more muted..."
Opinion | Will the Supreme Court Save Obamacare Again?