“I’d like to terminate Obamacare,” President Donald Trump said at Thursday night’s debate. He said he hoped that the Supreme Court, flush with six conservative justices after Judge Amy Coney Barrett’s likely confirmation, would take care of the job for him. “Now it’s in court, because Obamacare is no good.”
Trump’s argument is an awkward one, and not only because it’s a toxic message in the closing days of a campaign that’s occurring against the backdrop of a global pandemic. At last week’s confirmation hearings for Barrett, Trump’s Republican allies on the Senate Judiciary Committee repeatedly threw cold water on the lawsuit, which the Supreme Court will hear on November 10. As Democrats drew attention to the risk that the Supreme Court might put the law to the torch, Republicans insisted that the lawsuit was unlikely to succeed and that it was unfair to assume that Barrett would be as reckless as the man who nominated her. Democrats accused Republicans of disingenuousness; Republicans accused Democrats of fearmongering. The ensuing debate was as loud as it was unedifying.
All that noise obscured two deeper truths. The first is about the nature of constitutional change, and it helps explain why Senate Republicans have a point when they question the viability of a lawsuit whose goals they share and that the White House supports. The second is about the threat that the conservative Supreme Court poses to democracy. A Justice Barrett may be unlikely to topple the Affordable Care Act, but she’s a foot soldier in a conservative legal movement that has armed itself with the tools to subvert Congress’s ability to govern.
Roll the tape back to 2010. Minutes after President Barack Obama signed the Affordable Care Act into law, lawsuits were filed challenging the constitutionality of the individual mandate, the part of the law requiring people to secure insurance or pay a tax penalty. At the time, the cases were widely dismissed as constitutional stunts that stood no chance of success in the federal courts.
By the time the Supreme Court heard them in 2012, however, the cases had become nail-biters. That year, Jack Balkin, a Yale law professor, took a hard look at how that happened. His account of constitutional change didn’t turn on the nitty-gritty of legal doctrine. Instead, it hinged on the simple insight that “what people think is reasonable depends in part on what they think that other people think.”
Supreme Court justices are people too. That’s why moving a constitutional argument from “off the wall” to “on the wall”—to borrow Balkin’s terminology—demands more than showing that the argument is legally defensible. The justices must be reassured that the argument has enough public support that they won’t be written off as kooky or eccentric for endorsing it. The Supreme Court came to find that the Constitution protected gay rights and gun rights, for example, only after those rights had become mainstream. A similar shift in public sentiment explains how the challenge to the individual mandate became plausible.
How exactly did the challengers manage it? It wasn’t enough for conservative lawyers to make clever arguments, though that was essential. Nor was it enough for Tea Party activists to crash town halls. For Balkin, the key to the campaign’s success was the full-throated support of the Republican Party. The arguments of liberal lawyers insisting that conservatives were just making stuff up about the Constitution rang hollow when Republicans across the country, including local politicians, business leaders, and the guy on the bar stool, said otherwise. An argument can’t be crazy if half the country buys it.
The Republican Party’s political support was forthcoming because the legal challenge directly advanced the party’s agenda. Republicans might cripple a law that they deplored; failing that, they could use the challenge to focus public outrage and mobilize voters. As it happened, the Supreme Court, by a 5–4 vote, upheld the Affordable Care Act by construing the individual mandate as an exercise of Congress’s power to tax. But the political gambit worked: In 2012, Republicans made historic gains in both the House and the Senate. President Obama called it a “shellacking.”
Strictly on the legal merits, this latest challenge to the individual mandate is more absurd than the first one. In 2017, when Congress eliminated the tax penalty for going without insurance, it left in place language saying that people “shall” buy insurance. With nothing to back it up, that instruction lost its teeth. But the challengers—a group of red states—have argued that Congress, by retaining that language, must have meant to coerce people into buying insurance.
The upshot is that, by eliminating the tax penalty for not having insurance, Congress made the individual mandate more coercive—and thus unconstitutional. Even more radically, the challengers say that the constitutional flaw in the individual mandate requires unraveling the entire Affordable Care Act. Neither of these arguments is defensible.
But the case’s doctrinal weakness is not what most sharply distinguishes it from the first Obamacare suit. Indeed, the arguments are coherent enough to have persuaded each of the three Republican-appointed judges who have heard the case so far. The biggest difference is that the conservative political establishment that did so much to make the last Obamacare case seem plausible, even inevitable, has not laid the same groundwork here. The case is still off the wall.
The first sign that something was different about this lawsuit came in 2018, just months after it was filed. Instead of avoiding a debate over health reform, as they had before, Democratic Senate candidates used their opponents’ support for the lawsuit as a cudgel. Joe Manchin of West Virginia fired a shotgun at a copy of the complaint; Claire McCaskill of Missouri ran ads excoriating her opponent, Josh Hawley, for joining a case that would rip protections from people with preexisting conditions.
Hawley set the script for how Republicans would respond to these attacks. They would ignore the lawsuit, not defend it, and press the misleading talking point that they support protections for people with preexisting conditions. Protective of his Senate majority, Mitch McConnell damned the lawsuit with faint praise, saying only that there was “nothing wrong with going to court. Americans do it all the time.”
The pattern has held this election cycle. Embattled Senator Cory Gardner of Colorado, for example, has refused to say where he stands on the case. Instead, he released a campaign video promising to maintain preexisting-condition protections “no matter what happens to Obamacare.” When Democrats forced a vote on whether to bar Trump’s Justice Department from supporting the lawsuit, Gardner and five other incumbents in close elections broke from their party to side with Democrats. Republicans aren’t running on their party’s support for the lawsuit. They’re running away from it.
The only major exception is President Trump himself. Indeed, the White House’s surprise endorsement of the lawsuit in 2018 is probably best understood as a bid to get the rest of the Republican Party to back the case and put it on the wall. But that bid failed: The case was just too radioactive for most Republican officeholders. Even Attorney General Bill Barr has urged the president to moderate his position. A more prudent president probably would have taken that advice.
If the lawsuit is such a liability for Republicans, why was it brought in the first place? The answer is that what’s bad for the party may still be good for some politicians. Every one of the red-state attorneys general who brought the lawsuit has ambitions for higher office. But winning a gubernatorial race in Utah or Texas means winning a Republican primary, and the primary electorate in these states is much more conservative than the general. It might be advantageous for those politicians to press a position that’s bad news for Republican incumbents.
This puts Republican leaders in a bind. Without getting crosswise with the White House, they are trying to signal as loudly as they can that they would prefer the lawsuit to go away. That effort reached almost comic proportions during the Barrett hearings. McConnell said that “no one believes the Supreme Court is going to strike down the Affordable Care Act.” Senator Lindsey Graham, the chairman of the Judiciary Committee, emphasized that severability doctrine requires judges “to save the statute, if possible.” Senator Chuck Grassley said that it was “outrageous” to think that Barrett would invalidate the law, because, “as a mother of seven, [she] clearly understands the importance of health care.”
The Supreme Court is sure to get the message. During the first Obamacare case, groups affiliated with the Republican challengers filed 59 amicus briefs, including one from the Chamber of Commerce and another on severability from McConnell and dozens of Republican senators. This time around, only five amicus briefs were submitted to support the lawsuit, all from marginal players in the Republican political ecosystem. McConnell is sitting this one out.
The Supreme Court would thus be going out on a limb were it to invalidate all or part of the Affordable Care Act. It may still do so; we’re all just guessing. But without a full-court press from the Republican Party, a result like that couldn’t be spun to the public as a principled constitutional holding. Even to Republicans, it would look like rank partisanship. And the justices know that Republicans would bear responsibility for the fallout.
Although the prospects of this particular lawsuit are dim, however, the Democrats were right to focus on it during Barrett’s hearing. To begin with, the case serves as a reminder of all the other cases about health care that are coming down the pike—and not just those about abortion. The Supreme Court, for example, will decide in the coming weeks if it will hear a case about whether 19 states can impose work requirements on Medicaid beneficiaries. The U.S. Court of Appeals for the D.C. Circuit said no, effectively preventing hundreds of thousands of people from losing insurance. A Supreme Court packed with a conservative supermajority could—and probably would—flip that decision.
This latest Obamacare case also stands in for all the cases to come involving progressive legislation. Judge Barrett has been pretty candid that she would have sided with the challengers in the first lawsuit challenging the individual mandate. If she, not Justice Ruth Bader Ginsburg, had been sitting on the Court back in 2012, the Affordable Care Act would now be in ashes.
That should teach us something about the reception that major legislation passed by a Democratic-controlled Congress is likely to receive on a 6–3 Supreme Court. Republican officeholders may have mixed feelings about this case, but they will leap to convince their conservative constituents of the unconstitutionality of Medicare for All or a new Voting Rights Act or the Green New Deal. The resulting mobilization will make the Supreme Court receptive to inventive arguments that target those laws or frustrate their implementation.
Making the Affordable Care Act the centerpiece of the Barrett hearings was thus apt—not because the law itself is in serious jeopardy, but because it symbolizes the risk of giving a veto over progressive legislation to a conservative supermajority on the Supreme Court. The justices’ views about what counts as reasonable, like anyone’s, are powerfully shaped by the political debates of our time. If Barrett is confirmed, the views of two-thirds of those justices will be shaped by a Republican Party that represents less than half the country.
That’s not just a problem for Democrats. It’s a problem for democracy.
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This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.
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