Why the Texas ACA Suit Was Always Destined to Fail (Even on a 6-3 Court)

The latest Obamacare challenge was a clever lawsuit without an underlying principle.


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.

NEXT: Today in Supreme Court History: June 19, 1992

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  1. Because Roberts abandoned principle when he declared Obamacare a tax. This lawsuit accepted that new reality as if it were serious.

    But tactics like that in response to dishonesty never work. Roberts and the four had decided they ultimately didn’t care about laws or the constitution where the ACA was concerned. Their justification for themselves wasn’t a statement of principles, it was merely pretense. Having abandoned honesty and principle, what would bring them to re-adopt it?

    And of course the new justices aren’t going to accept a new argument based on Roberts' dishonest foundations. Why should they play along with that nonsense more than they have to?

  2. Wait, so a bunch of conservatives were worried that poor people might get health insurance and started talking about broccoli a lot, and suddenly that's "grounded in longstanding concern about maintaining the limits on enumerated powers"? That same concern that was so eloquently phrased by Justice Scalia in his majority opinion [checks notes] allowing the Federal government to lock up anyone who had ever been in the same room as a joint, even though the defendant in that case was white?

  3. I believe the popularity of the ACA is a direct result of the failure of Republicans to show an alternative. Prof. Adler argument is the that the ACA goes to far and exceeds constitutional authority. He may be correct, but is not the argument at center of the discussion. Republican did not argue that the ACA was unconstitutional, but rather that they would provide an alternative. That they never provided the alternative left in many minds that the ACA and Medicare for All were the only choices. People want health care and so are willing to accept the ACA as the best of limited choices. Those opposing the ACA simple appear to be wanting to strip people of healthcare.

    1. They argued it was unconstitutional.

      1. And in so doing ignored the reality that people want health care.

        Even if I agreed that it is unconstitutional (which I do not), you cannot take away from people something that is popular without offering an alternative. That's politics. We're not going back to the 1930s.

        Republicans have had plenty of opportunities to pass something that fixes the admitted problems with Obamacare while leaving health care intact. They could do so in such a way that there would be no doubt as to its constitutionality. They won't. Which is why they are going to lose.

        1. Jim Crow might have been popular where it was practiced. It wasn't constitutional.

          1. I don't agree that Obamacare is unconstitutional, and you're seriously analogizing white supremacy to providing the poor with necessary health care?

        2. About 9 out of 10 people already had arrangements for health care.

          1. Assuming that number is correct, something still needed to be done about the remaining 10%, and the anti-Obamacare folks weren't doing it.

            1. And most of them still don’t have health insurance to this day. So Obamacare didn’t do it either.

            2. So, "Something needed to be done, and this was something!"?

              The ACA is a welfare program, but instead of putting it honestly on budget, they mandated that the insurance companies implement it. As though you'd ordered grocery stores to sell food to poor people below cost, instead of creating the food stamp program.

              Of course, being forced to sell insurance below cost to some people meant that they had to sell it at inflated prices to other people. So to keep the people the ACA mandated would get a rotten deal from jumping ship, you had the mandate to buy insurance whether or not you wanted to.

              Well, the mandate is, effectively, gone, so we'll see how that works out. I'm expecting a gradual decline in the health insurance industry, as people move towards self-insuring and medishare type programs.

              1. The ACA is a welfare program, but instead of putting it honestly on budget, they mandated that the insurance companies implement it.

                Brett comes out for single payer.

                And, BTW, ACA payments sure do appear on the federal budget.

    2. Also about 9 out of 10 people already had arrangements for health care. There was never a need to meddle with everyone's health care for the benefit of the last 1 out of 10.

        1. Obvious dishonesty there.

          if this specific bill isn’t enacted, the only alternative is nothing

          Everyone knows that’s false and intentionally dishonest. But that’s what we have all come to expect.

          1. The Republicans, with the votes to pass anything they wanted and a President who would sign it, failed multiple times to come up with anything, despite how clearly helpful it would have been for them to get votes.

            And yet the narrative they, and the President, went with was 'we will come up with a market-based alternative to this socialism.'

            And they failed. Multiple times, over multiple years.

            Meanwhile, some legal scholars were running interference and finding new commerce clause jurisprudence that happened to attack the ACA. But that kind of change in legal thinking, not backed up by a change in social thinking, won't get you where you want to go.

            I'm nowhere near a pure legal realist, but I recognize the necessity of a practical/impact-based aspect to one's legal advocacy. Because history shows that anyone who is a pure constitutional formalist for their own doctrine is not actually dealing in reality.

            Of course, if you're just yelling on the Internet, you're all good. But you also lock yourself out of any part of the debate that's actually dealing with the real world.

            1. Obamacare also failed. Failure is the consequence of mostly imaginary utopian goalposts.

              1. The primary beneficiaries of Obamacare are health care providers…it’s a revenue stream they can accept or decline. People like you were fine throwing money at the Taliban for 2 decades but you don’t want to throw money at Americans…I have no problem throwing money at Americans especially when it is pennies on the dollar for what they normally get.

                1. Yeah, the Taliban is really relevant. Bravo.

                  1. ^^^wept when Iraqis voted after we flushed trillions down a toilet helping them…but gets enraged when we spend money on health care for poor Americans.

              2. Obamacare also failed

                Nope. It's still here, quite popular, and just proven strong against yet another partisan attack.

                I'm not the biggest fan substantively, but it's on it's way to be up there with Social Security and Medicare/Medicaid.

                1. The obvious indifference to (and contempt for) what about half of Americans thought helped get us 10 years of majority leader Mitch McConnell — and probably more starting in 2023 — so it at least succeeded at that.

                  1. Ah yes, the elections where the GOP wins were pure referenda on Obamacare. The elections where the GOP lost were cheating by Dems.

                    Even you must see how dumb that framework is.

                    1. Because "helped us" clearly means it was the only factor.

                      Are you pretending this time or are you actually unable to understand simple sentences? I think it's pretending. Not a good look for you this time.

          2. If the italicized words are false and dishonest the blame must surely lie with he who spoke them.

    3. Republicans lack the ability to come up with an alternative idea because for the most part, they are still wed to a government-centric model of doing the things, with the major difference being to do it more “efficiently” or with less spending.

      Aside from a few like Rand Paul, they lack the intellectual basis for making an argument that 100 years of government intervention in the healthcare market created the worst of all possible worlds that we have now: a mix of socialism and mercantilism with no market forces or government rationing to control costs.

      Allow the government to take over the entire funding of healthcare and limited budgets will force rationing. But that is a later discussion.

      The point is the GOP is incapable of explaining in simple terms (because the problem is not simple) how we got where we are today and that the only way to return to some form of normalcy is to peel away the layers of government intervention like peeling an onion. At the core, there is an excellent system of care with great medical professionals whose services should not be rationed by government dictate but are a commodity like every other necessity of human existence from food to housing.

      1. Ah yes, 'real Capitalism has never been tried.'

        1. No. More that the people aren't willing to accept that real capitalism leads to a portion of the population suffering.

          1. And socialism leads to a different portion of the population suffering.

            Suffering is baked into human existence, you can move it around, minimize or maximize it, but you'll always have some around.

            1. Yes, exactly that.

        2. No, more like we had it for a while then abandoned it.

          1. The lesson is, never try.

            My point is that the pure versions of both of these systems are so bad they are impossible to implement. But don't exclude the vast middle.

    4. Of course people "want health care." But the part you are intentionally leaving out is that people "want health care paid for by someone else."

      Insurance, from a philosophical standpoint, doesn't make sense if it covers pre-existing conditions. When you require that it does, what you're saying is that people who are medically uninsurable should be subsidized by the rest of society. Thus, that if someone has a basic need, like health care, housing, food, or whatever, it's the rest of society's obligation to provide that, at gunpoint, if the person can't provide for themselves.

  4. Well the principle that government can't force you to buy something is really still it.

    This new notion that as long as its tax anything goes also seems flawed. Why did we need the 16th amendment then?

  5. It is not a 6-3 court. CA vs TX was probably not going to fly but any objective look a the court demonstrates it is not 6-3. I would instead call it a 4-2-2-1 court.

    2 liberals who nearly always vote as a block: Kegan, Sotomayor
    2 conservatives: Alito, Thomas
    4 moderates: Roberts, Kavanaugh, Breyer & Barrett
    1 libertarian: Gorsuch

    Breyer tends to lean liberal and Kavanaugh tends to lean conservative but those 4 moderates seem to form the core of the majority. But the idea that the court is overwhelmingly conservative is just a narrative of the left in their attempt to undermine the independence of the judiciary with their court packing threats.

    1. 2 liberals who nearly always vote as a block: Kegan, Sotomayor
      They do not vote as a bloc.

      2 conservatives: Alito, Thomas
      Also don't vote together all the time.

      4 moderates: Roberts, Kavanaugh, Breyer & Barrett
      That's quite a large middle there, to contain Breyer and Barrett. So large I'd argue it no longer becomes a useful category.

      1 libertarian: Gorsuch
      I might buy this one. But I find Gorsuch seems more a fiend for doctrine, regardless of the outcome. That's going to oftentimes come out libertarian, and sometimes not.

  6. It's a closer call whether this effort failed if you concede that Texas didn't expect to win the case, their goal was to be seen to be "doing something". Ken Paxton has moved on to other windmills.

    1. Ken Paxton is the most important man in America right now because he is facing a Bush in a primary election and he must win for the good of the country. George P Bush has failed upwards just like his uncle and he’s running for AG after having a dormant law license for several years after not even sniffing partner at a law firm!?!

      1. Ken Paxton is the most important man in America right now because he is facing a Bush in a primary election and he must win for the good of the country.


        I mean, I suppose it matters to a fair number of Texans who gets the GOP nomination for AG, but I seriously doubt that even to them that primary is the most important thing in the country.

        1. The Bush family is a virus that has infected America and we can’t seem to get rid of. Paxton will never be more than AG but George herPes Bush wants to become president to do god knows what to America!?!

        2. Huh?

          Just like Behar is monomaniacal on the subject of lawyers, Sebastian is monomaniacal on the subject of the Bush family. Each will blame their chosen bogeyman for everything wrong with the country — though at least Sebastian doesn't go back to the American Revolution to assign blame!

          1. Everything Trump ran against happened under George Wu Bush—so illegal immigration peaked in 2007, we hemorrhaged manufacturing jobs to China under Bush, Bush started the stupid wars without finishing them, the economy was a joke when it should have boomed in light of boomers not hitting 65 until 2011, Tillerson was a huge Bush supporter and he was advocating importing LNG in 2007 while the Bush administration lied about our energy crisis, and lastly Bush/Cheney pressured CIA interrogators to torture detainees in order to elicit false confessions tying Saddam to 9/11!?!

            1. Dude, the topic at hand is the Texas lawsuit and the ACA. Try to concentrate.

      2. Would that be the Ken Paxton facing trial for felony securities violations, and under investigation by the FBI? If that's the most important man in America, America is in very deep trouble

        1. Bush/Cheney stole an election and then proceeded to lie America into a war…and Bush is the worst president in history! Dennis Hastert’s son isn’t involved in politics!?! Why does the GOP continue to promote people as worthless as Liz Cheney and George herPes Bush especially when the legacy they represent is one of failure?!?

  7. The latest Obamacare challenge was a clever lawsuit without an underlying principle.

    Adler's definition of "clever" is different than mine.

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