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The latest rerun of “Law & (Dis)Order: ACA Special Victims Unit” was aired Tuesday afternoon in New Orleans, before a three-judge panel of the US Fifth Circuit Court of Appeals hearing oral argument in Texas et al. v. United States. You may recall that this is the lawsuit that is supposed to threaten to end life as we know it, or at least Obamacare. As if!
The actual significance of this case remains substantially overstated, given its all-but-indiscernible prospects for success eventually. The judicial terrain ahead at the Supreme Court, even assuming an unlikely limited “win” in the Fifth Circuit for the Republican-state attorneys general and individual appellees, remains quite negative. We have been here before, with far stronger legal challenges to the Affordable Care Act (ACA) falling short, way back in 2012 (NFIB v. Sebelius) and 2015 (King v. Burwell).
It’s not quite a case of the Karl Marx quote (“History repeats. The first as tragedy. The next as farce.”), but the latest efforts are emptying the fumes in the ACA-litigation gas tank.
The case is drawing excessive attention as somewhat of a prolonged victory lap by ACA defenders, who appear to enjoy rehashing the “Reversal of (political) Fortune” for Obamacare opponents who mostly slipped into an irreversible political coma after July 2017. The former’s continuing advice to Republican officeholders about the perils of pursuing this latest legal challenge rings hollow, since they actually expect to score more points the longer that they can paint the latter as threatening to disrupt existing health care arrangements. It feels like a gift that keeps on giving.
The Republican AG (stands for Attorney General, or Aspiring Governor, take your pick) proponents of the current lawsuit initially envisioned a too-clever gambit to leverage the removal of tax penalties within the ACA’s individual mandate (as of January 2019) via the Tax Cut and Jobs Act of 2017 into a broader unraveling of the constitutional law underpinnings of the overall ACA. Despite some initial success in a most favorable judicial venue (a federal district court in the northern district of Texas) last December, the judicial path ahead gets steeper and full of legal land mines. A pragmatic but still purposeful strategy might have aimed for more modest goals: getting the vestigial regulatory commands of the mandate declared unconstitutional and pointing out the intertwined hypocrisies of past legal and political arguments used by ACA defenders to first pass the law and then preserve it in previous litigation.
However, the Trump administration’s updated strategy, routed through its now apparently irreplaceable set of Department of Justice (DOJ) attorneys, was to essentially support the Republican states’ effort even more whole-heartedly. That approach will turn out to be, as is often the case, muddled, short-sighted, and volatile (far from the work of an “extremely stable genius”!) At best, the wiser course might have aimed to keep hope alive for ACA opponents that efforts would continue to reshape the law, if not to defuse fully its most noxious components.
Signifying, without necessarily accomplishing, might entertain the base. But more robust support for a less ambitious challenge to some of the ACA’s evolving contradictions and failed promises could have helped bolster the case for more market-based remedial corrections, while highlighting the mistakes and misrepresentations of the law’s original architects, if not stripping them down to the modest fig leaves used to cover them up.
Instead, the Trump DOJ leaped beyond somewhat precarious ground into thinner air in switching its stance on severability in its Fifth Circuit appellate brief and embracing invalidation of the entire law. A long line of severability cases in recent times, let alone practical constraints in reassembling the ashes of a nearly 10-year old law’s institutional roots, argues otherwise.
The Disrupter in Chief may hope that threatening to turn over the table suddenly in this prolonged board game (see player type no. 5) will provide new opportunities for leverage in the “next” Pickett’s Charge against ACA fortifications; in other words, a new deal of fresh cards. But it doesn’t appear likely to keep playing out that way — either in the court proceedings ahead or in the larger arena of public opinion and political positioning to come.
That said, ACA opponents still received another short-term sugar high from the general tone of yesterday’s oral argument. Although it is always hazardous to predict voting outcomes from just the type of questions asked by judges during oral arguments, the two Republican-appointed judges (Jennifer Walker Elrod and Kurt Engelhardt) on yesterday’s panel seemed to be more in tune with a milder version of the district court’s findings in the case than with the objections by the Democratic state AG’s and the US House of Representatives.
It appears that initial concerns about sufficient legal standing for parties on either side of the case can be airbrushed away. A query by Judge Elrod about why the appellant states intervening in the lawsuit should have standing but the appellee states bringing the original complaint should not triggered a complicated distinction in response from California Solicitor General Samuel Siegel. And the full intervenor status of the US House still might be in jeopardy due to lack of timeliness. But despite such legal jousting, the parties on both sides have a mutual stake in keeping the case alive, relying on the US v. Windsor DOMA enforcement precedent; whether to validate their stances or just generate continuing news coverage of their “essential” roles in the process.
More significantly, at least two of the Fifth Circuit judges (Carter-appointed senior judge Carolyn King remained silent during the oral argument) expressed apparent support for the view that a purely regulatory individual mandate, minus the tax penalties previously used to support its legal status (in 2012), could be sufficiently coercive to be unconstitutional. They also seemed to be somewhat skeptical of the appellants’ arguments that the clear intent of Congress in 2017 was to preserve the rest of the ACA despite the tax-free mandate. Judge Engelhardt’s astute comments about the procedural limits of the budget reconciliation process used to eliminate the mandate’s tax penalty indicated he wasn’t buying.
The harder read involves how far any potential majority to strike down the mandate would go regarding nonseverability. The main argument on that front by the Republican AGs’ side, that the 2010 ACA included a “nonseverability” clause that controls this issue, was overstated and won’t hold up. Whether the original ACA’s congressional findings of fact regarding the connection between the individual mandate and some, but not all, of the ACA’s other provisions still are controlling could be a closer legal call, but the DOJ’s inconsistent hedging regarding just how far severability might go won’t be helpful.
Judges Elrod and Engelhardt appeared to be quite reliant on a textualist approach to determining congressional intent, as well as a procedural emphasis on the limits of what actually was decided in the lower court last December (partial summary judgment, uncontested factual allegations, declaratory judgment, no injunction, etc.). But although the Democratic pro-ACA appellants cannot have been encouraged by the tone and scope of yesterday’s questioning, it remains a giant leap further ahead to envision a ruling that would overturn the entire ACA on nonseverable constitutional grounds. That’s just too much of a stretch, under standard severability analysis, to argue that the congressional findings of fact in 2010 actually intertwined the individual mandate with much more than a limited set of insurance-coverage-related ACA provisions (guaranteed issue, adjusted community rating, and perhaps minimum essential benefits at most). And even if the Fifth Circuit panel (or a later en banc review) decides to produce a scrambled mess, the Supreme Court and its chief umpire John Roberts (who has a tight strike zone for ACA legal challenges) remain poised to clean up Humpty Dumpty.
At least there’s some good news ahead in this latest reenactment of Legal Ground Hog Day: Seeing shadows of past legal feints and parries could mean at least six more months of business for legal commentators. Everyone else can retreat to their dens in the meantime.
The latest rerun of “Law & (Dis)Order: ACA Special Victims Unit” was aired Tuesday afternoon in New Orleans, before a three-judge panel of the US Fifth Circuit Court of Appeals hearing oral argument in Texas et al. v. United States. You may recall that this is the lawsuit that is supposed to threaten to end life as we know it, or at least Obamacare. As if!
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