The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the Author's Note to my second book, Unraveled (2016), I wrote "By fate or design, my young career has tracked the trajectory of the Affordable Care Act." Four years later, that trajectory has stayed the course. Since I graduated law school in 2009, and started teaching in 2012, debates about the legality of Obamacare have persisted. Indeed, I am now working on a third book to complete the ACA trilogy. Yet, California v. Texas is different. After nearly a decade, the law has woven itself into the fabric of our polity. Most of the staunchest critics of the law have abandoned any efforts to "repeal and replace" the statute. Now, reforms take the ACA's planks as a starting point.
California v. Texas will signal the high-water mark of Obamacare litigation. Not a single Republican member of Congress filed an amicus brief in support of the challenge. Virtually every conservative rejects the notion that the Supreme Court should declare the ACA unconstitutional in its entirety. Perhaps these politicians are persuaded by the legal arguments in defense of the law's constitutionality. I'm not so convinced that legal niceties made the difference. Partisans routinely accept frivolous legal arguments that achieve their policy goal. Rather, I think these politicians recognize the disaster that would result if the Supreme Court were to set aside the ACA. There is a fascinating backstory about the role Texas has played to litigate this case, alongside the federal government. The process was messy. (Stay tuned for the trilogy).
This lack of institutional support doomed the case from the outset. There was no way an argument would move from "off the wall" to "on the wall" if conservatives and liberals alike opposed it. Again, for most non-lawyers, the merits of the argument are secondary. I don't mean that observation as a pejorative. Rather, this dynamic simply describes how legal arguments are used, or are not used by the general public. Most nonlawyers lack the capacity to assess the strength of a legal argument. Instead, they will primarily look to whether that legal argument supports their policy preferences. Or, they may look to whether people they respect advocate, or criticize that position. I've learned this lesson well after nearly a decade of speaking to the press. My "fan mail" looks very different depending on whether my answers tilt left or tilt right.
That history brings me to the oral arguments in California v. Texas. Both the district court and the Fifth Circuit relied heavily on my work. But I've received few plaudits. My position in this case has been an outlier. Scholars on the left and the right have unified. I respect the views of others, including several VC co-bloggers, who have thoughtfully responded to my position. As a general matter, I am not concerned that my views are not widely held. At this point in my career, I am quite used to this status.
Still, I look forward to the argument with some trepidation. No, not because I may be criticized. Those barbs no longer have any effect on me. Rather, I may learn that my longstanding view of NFIB may be wrong. For nearly eight years, I have firmly held an understanding about the holding in NFIB. This view was built on thousands of hours of research, which included interviews with the principal attorneys on both sides of the case. I know so much about how NFIB was litigated that I can't view California v. Texas in a vacuum. Moreover, I have taught this understanding to thousands of students, and have written books, articles, and Op-Eds about it. I have always viewed this latest challenge differently from others, because I have always viewed the original challenge differently from others. I've stopped trying to explain this history to others, because lines have been firmly drawn.
Maybe my position is right. If so, then my amicus brief would provide the Court with a helpful approach to resolve the dispute. If I'm wrong, then my brief will not be helpful. Truthfully, the only person who can broker that tie is Chief Justice Roberts. And let's be frank. No one really knows what Roberts meant–perhaps not even himself. If you think you know what Roberts really intended, check yourself. NFIB was crafted during a very tumultuous time, when attention to detail was not always possible. It's possible we all misread the Chief. It wouldn't be the first time. At this juncture, I approach the case with enough humility to admit that I may be wrong. I hope others will as well.
It's possible that the Chief will not show his hand during argument. In King v. Burwell, he only asked a few questions. I suspect he may do the same in California v. Texas. And there are so many off-ramps for the Court to punt on this case, that we may never, ever learn how the Chief truly understands his opinion. It is also possible that five other members of the Court decide to write separately and reinterpret, or even deviate from NFIB. Still NFIB would be the riddle of the sphinx.
I will be listening carefully to the arguments, and hope to provide commentary in due course.