Courthouse Steps Podcast on California v. Texas

A discussion with Mario Loyola on the Supreme Court's latest Affordable Care Act Decision

In late June I recorded a Federalist Society "Courthouse Steps" podcase on California v. Texas with Mario Loyola. The audio of that teleforum is now available here.

We agree that the Court was correct to reject the plaintiffs' claims in California v. Texas, but had some disagreement on how the Court should have gotten there. I hope the recording is of interest to some VC readers.

(Note: We had a zoom glitch in the middle, but it should not get in the way of the content.)

All told, California v. Texas was not the third, but the seventh ACA case to reach the Supreme Court. The contraception mandate and cost-sharing payment cases are ACA cases too. California v. Texas will also not be the last time the ACA reaches One First Street. For reasons I explained in this little paper from a few years back, the ACA's text, structure, history, and content created a perfect storm for ongoing litigation, and the Supreme Court will eventually become as familiar with this statute as it is with the Clean Air Act or (even more likely) ERISA.

All of my prior blogging on California v. Texas is indexed here.

Comments

[Dilan Esper]

Back in the 1920's, the Supreme Court became intimately familiar with the Volstead Act. So I think the prediction is sound.

But what I would say is that this might be the last frontal challenge to Obamacare that the Court takes. Even Justice Thomas seems sick of the conservative movement ginning up challenges. There will be various attempts to give Obamacare limiting constructions (especially on issues relating to religion), but I think its the end of the road for actually trying to repeal it.

Also, and I admit this is a political and not a legal point, but I think the conservative movement lost a great deal of credibility when they passed something like 40 Obamacare repeal bills for messaging purposes, and then, when they had the "trifecta" and had a chance to repeal and replace Obamacare, not only did their effort fail, but they had difficulty even settling on a health care policy.

The point I am making is that conservatives' ultimate problem on health care policy was that they never seriously coalesced on a health care policy, and a big reason for this is because their various constituencies could not agree on one and because the stuff conservatives do mostly agree on includes some very unpopular things.

So they just relied on status quo bias and veto points to stop Democrats from overhauling health care, and that meant that when the Democrats actually got passed the status quo bias and veto points and passed something, they were suddenly playing defense and did not really have much to say. Even now, if you ask a Republican about health care policy, they'll utter some talking points but there's no detailed plans or proposals coming out of any of the well funded Republican think tanks or legislative policy shops.

The lesson here, if you are conservative and don't like Obamacare, is that it is a big gamble to just rely on status quo bias and veto points. Because that means that if the other side ever gets past those, whatever it passes is going to be entrenched. In retrospect, conservatives would have done better if they had been more active participants in the health care debate. Specifically, Obamacare could have been a far more conservative bill/law if Republicans had thought in terms of "how do we want to influence health care policy in a conservative direction?" rather than "how can we either deny Obama a victory or convince the courts to declare it unconstitutional?".

[Sebastian Cremmington]

Obamacare is really the only way to do it. I would have preferred in 2011 to have a state do a pilot program because I think that would have led to a scrapping of the ACA Exchanges and they would have simply gone with Medicaid up to 250% FPL and then a tax credit for everyone in the individual market. I don’t think the ACA Exchanges add value to the system and unfortunately the creation of the Exchanges led to a new group of stakeholders that includes the Kushner family. So Trump never had any intention of repealing Obamacare because he was always looking out for the Kushner family.