The invisible primary for judicial repeal of the ACA

Slapped on a Friday evening with a hyperpartisan judge's palpably ridiculous decision purporting to strike down the entire ACA, I suspect that many progressive minds restarted a two-stroke motor that's been running since Texas v. U.S. first stained the horizon.

Stroke 1: this suit is too ridiculous even for Republican judges.  It claims in effect that Republicans in Congress repealed the entire ACA in a fit of absent-mindedness when they zeroed out the mandate penalty last December.

Stroke 2: we had the same reaction to the two prior anti-ACA suits to reach the Supreme Court, one of which failed by a 5-4 and the other by a 6-3 count. Will the absurd again become Republican orthodoxy?

Will this legal nightmare recur? Jack Balkin offers crucial perspective:

What moves arguments from off-the-wall to on-the-wall depends a great deal on who is willing to put their reputation and authority behind the arguments and stand up for them. If enough important and influential people say that a legal argument is not crazy but one on which reasonable minds can differ--or even the best legal argument, all things considered--then it becomes on-the-wall, although it is by no means guaranteed to succeed ultimately in the courts...

I've written that one of the most important factors in moving an argument from off the wall to on the wall is whether a major political party gets behind it. The Republican Party almost immediately closed ranks in the first two Obamacare suits: NFIB v. Sebelius and King v. Burwell, and did so early on in the litigation. 

On this front, the early and sustained opposition of Jonathan Adler, a mastermind and driving force behind King v. Burwell, has so far proved invaluable. In King Adler seized on a drafting flaw in the ACA, in which instructions to the IRS to credit premium tax credits referenced only "an exchange established by a state" as the vehicle, to argue that the backstop federal exchange was not authorized to provide the tax credits.  The plaintiffs had a point in a "the card spells Moops" sense - the drafting error was there. To give it legal force, however, the plaintiffs had to mount the ridiculous argument that the Democratic drafters of the ACA did not intend to empower the federal exchange (conceived as a backup, but used by most states) to authorize tax credits for qualifying enrollees. Writing for a 6-3 majority, Chief Justice John Roberts accorded that argument the contempt it deserved:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

This time around, however, Adler joined with progressive attorneys (and conservative Ilya Somin) an an amicus brief filed in June to argue that the ACA's individual mandate is obviously "severable" from the rest of the law, because last December Congress repealed the mandate penalty without repealing any other part of the law. This weekend, Adler redoubled the attack, co-authoring with Yale law professor Abbe Gluck (also a co-author of the brief) an op-ed titled What the Lawless Obamacare Ruling Means, Adler, with Gluck, is categorical: " "this decision makes a mockery of the rule of law and basic principles of democracy."

From last spring on, and the more so now, Adler's opposition has enabled assertions like Bob Herman's in today's Axios:

Legal experts who have opposed and supported the ACA almost uniformly agree the judge's legal rationale is flawed or "indefensible."

That all-embracing plural references one longtime ACA opponent: Adler. There are others, including Somin. But Adler has been the marquee.

Today, however, the Wall Street Journal editorial page, an opinion center so partisan it's supported smears against the Mueller investigation, casts another Republican establishment vote against Jude O'Connor's bid to legislate from the bench:

[Judge O'Connor is] right that Democrats claimed the individual mandate was essential to the Affordable Care Act. But when Congress killed the financial penalty in 2017 it left the rest of ObamaCare intact. When judging congressional intent, a judge must account for the amending Congress as well as the original Congress.

In any case, the Supreme Court’s “severability” doctrine calls for restraint in declaring an entire law illegal merely because one part of it is. Our guess is that even the right-leaning Fifth Circuit Court of Appeals judges will overturn Judge O’Connor on this point.

So, keep your eye on the "invisible primary" for this case -- its treatment by the Republican establishment.  The "primary" may be especially important in that the judicial playing field is a swiftly tilting planet. Balkin again:

On the other hand, the composition of the federal judiciary may be *more* hospitable to the claims in Texas v. U.S. than it was during the Obama years, because of the McConnell/Trump strategy of appointing as many conservative federal judges and Justices as possible as quickly as possible.

In light of that tilt, last word to the Center for American Progress's Topher Spiro:

...there must be immediate, massive outrage. Judges do not operate within a vacuum. The appeals court judges need to see that this ruling threatens the legitimacy of the courts.