Law professors on the Volokh Conspiracy — the influential blog (once hosted by The Washington Post) that kindled the near-fatal challenges to the health-care law — blasted O’Connor’s analysis as “implausible” and “badly flawed.” The Wall Street Journal editorial board called it a “blunder,” while the editors of the National Review “deplore” the decision. Commentators on the right were nearly unanimous in their prediction that O’Connor’s opinion would be overturned on appeal.
It’s a stark contrast with the way that many of the same voices greeted the federal court decisions in 2010 and 2011 — later overturned by the Supreme Court on a 5-to-4 vote — that found Obamacare’s individual mandate to be beyond Congress’s constitutional authority. O’Connor’s critics also include onetime cheerleaders for the statutory challenge to Obamacare subsidies that the justices rejected in 2015.
Some see O’Connor’s decision as proof that the courts have become just one more forum for partisan politics. But the reaction on the right to his opinion should partly reassure Americans who had begun to doubt whether precedent and legal logic still count for anything. For while it is disconcerting that a district court judge would sign onto the states’ outlandish argument, equally significant is how so many conservative and libertarian legal thinkers and opinion shapers are refusing to take the bait. Of course, ideology sometimes tips the balance in close and even not-so-close cases. But notwithstanding the polarization of American politics, ideology still has its limits in the law.
Indeed, O’Connor’s decision is singularly unpersuasive as a matter of legal argumentation. The fundamental premise underlying O’Connor’s analysis — that Congress would not have wanted to leave the rest of Obamacare in place if the individual mandate were eliminated — flies in the face of how Congress actually voted to repeal the individual mandate while leaving the rest of Obamacare in place less than a year ago. The rest of O’Connor’s 55-page opinion tries to paper over the logical hole at its center. That backers of earlier Obamacare challenges have balked at O’Connor’s opinion shows just how spectacularly that papering-over effort failed.
The political context has changed since the first round of challenges to Obamacare. The law, long an albatross around the necks of Democrats, is broadly popular. Some on the right are concerned that a decision to strike down all of Obamacare, including its protections for patients with preexisting conditions, could boost Democrats in 2020, given how Democratic House candidates played the health-care issue to their advantage in last month’s midterms.
But the politics of Obamacare are not clear-cut, making it unlikely that strategic considerations alone explain the right’s reaction to O’Connor’s decision. For one thing, O’Connor’s conclusion that the entire Affordable Care Act is invalid offers red meat to the Republican base. If it took effect, it would achieve what House Republicans and President Trump spent a year attempting, and failing, to accomplish. It would instantly lower the top tax rate on investment income by 3.8 percentage points, giving a further reward to Republican donors who already are reaping the riches of last year’s $1.4 trillion tax cut.
It could also give Trump and Senate Republicans a golden political opportunity: They could offer replacement legislation that restores Obamacare’s premium subsidies and preexisting-condition protections — the most popular parts of the law among middle-class voters — but leaves out the law’s Medicaid expansion and its higher tax rates on the rich. House Democrats would find themselves in a bind, forced to either abandon millions of Medicaid beneficiaries or else allow insurers to discriminate against the chronically ill.
The potential political upside has not, however, made O’Connor’s indefensible opinion any more palatable to many on the right.
Granted, I and many others thought that the first two judicial attacks on Obamacare were also wrongheaded. But the first challenge to the individual mandate — that Congress overstepped its constitutional role by requiring most Americans to purchase insurance or pay a penalty — was rooted in an originalist theory of constitutional interpretation that, whatever its shortcomings, cannot be characterized as unserious. And the statutory challenge that reached the Supreme Court in 2015 was based on a facially plausible reading of the health-care law’s text.
That did not stop some commentators on the left from dismissing these arguments as frivolous, but in retrospect, those dismissals gave short shrift to legal theories that, at the very least, had the power to persuade a number of well-informed and fair-minded people of their merits.
O’Connor’s opinion is different. It’s the conservative equivalent of a left-leaning judge saying that the Bill of Rights requires “Medicare-for-all.” Just as liberals like me who might favor that result as a policy matter acknowledge that it fails the legal laugh test, conservatives and libertarians who abhor Obamacare still are unwilling to join O’Connor in his constitutional fantasy.
None of this is to deny that hyper-politicization of the law remains a danger. The fact that 20 states — through their attorneys general or governors — signed onto this legal theory in the first place is a frightening omen. Worse yet, the Trump administration Justice Department declined to defend important portions of Obamacare from the states’ attack. That they won over even a single sitting federal judge is as astounding as it is dispiriting.
But that, in all likelihood, is about as far as the challenge will go. Chief Justice John G. Roberts Jr. has twice voted to save Obamacare. It’s hard to believe that he would deal the law a death blow when the arguments for doing so are considerably weaker than those in previous challenges. Indeed, the notably conservative U.S. Court of Appeals for the 5th Circuit may well scuttle the lawsuit even before it reaches the Supreme Court.
Of course, all judges are more than nonideological umpires. But most members of the federal judiciary are still unwilling to call the batter out on a wild pitch. The right’s reaction to O’Connor’s opinion suggests that, even in an age of partisan hardball, there remains some shared understanding of where the strike zone lies.