The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From the very beginning, I was among those that said the claims in California v. Texas were categorically different from those in prior Affordable Care Act cases and would ultimately fail. (My prior posts on this litigation are indexed here.) The question was never whether Texas would lose, but how and when. I further said repeatedly that the claims would be lucky to get two votes on the Supreme Court.
What distinguished the claims in California v. Texas from the claims in NFIB v. Sebelius and King v. Burwell was not merely relative weakness of the arguments, but also the lack of any grounding in conservative jurisprudence. The arguments underlying aggressive legal challenges often seem weak at first. If they are to go from "off the wall" to "on the wall" they need to be grounded in sound legal principles. Planted in the fertile soil of an underlying jurisprudence, even apparently outlandish legal arguments may blossom. Legal arguments motivated by nothing more than policy aims, on the other hand, are likely to wither.
The claims in NFIB were grounded in longstanding concern about maintaining the limits on enumerated powers. The individual mandate and Medicaid expansion both represented unprecedented assertions of federal power, and the arguments against each were directly tied to principled arguments about the need for judicially enforceable limits on federal power. (Some of us here at the VC were involved in developing those arguments, as documented in our book, A Conspiracy Against Obamacare.) Thus the arguments in NFIB were not merely about the ACA. They were about vindicating a constitutional principle that has long been embraced by conservative and libertarian legal scholars and jurists.
Just as the arguments in NFIB were grounded in a core conservative constitutional principle, the arguments in King v. Burwell were grounded in a core conservative interpretive principle: that the meaning of a statute is controlled by the statute's text. The idea that words in a statute mean what they mean was not invented for this case. The argument that statutory interpretation must be grounded in and anchored by the statutory text have been made for decades. Moreover, the central arguments in King were developed and advanced before there was even any prospect of litigation. (In my case, I first spoke and published on the meaning of the relevant provisions of the ACA before NFIB had been decided and when it still looked as if every state would create their own exchange.) The arguments were no doubt supported by many who saw them as a means to attack the ACA, but the arguments themselves involved straightforward textualist analysis of the relevant provisions in their broader statutory context. (The Court's King opinion, on the other hand, not so much.)
California v. Texas, in contrast to NFIB and King, was not moored to any underlying jurisprudential principle. If NFIB was about limited and enumerated powers and King was about text, California v. Texas was about what exactly? Hamstringing the legislature's ability to use reconciliation? Turning statutory challenges into games of Jenga? In the end, the case was really about nothing more than slaying the ACA by any means necessary. This explains why it prompted significant opposition on the Right found greater support from state attorneys general than from conservative and libertarian legal scholars (as illustrated by the line-up of amicus briefs). Hating on the ACA may win a Republican primary or fill fundraising coffers, but it's not enough to win over a majority of justices.
Not only were the core legal arguments in California v. Texas unmoored from conservative jurisprudence, key elements of the case actually challenged longstanding conservative principle. As I've explained in prior posts, for the plaintiffs to prevail, the Court would have had to abandon longstanding constraints on Article III standing, adopt selective and result-oriented purposivist analyses of legislative intent, and invent a new approach to severability at odds with any notion of remedial restraint.
All of this meant that the headwinds against the arguments in Calfornia v. Texas were simply too strong to be overcome. To some of us, that this would be so was obvious from the start.