New Article on California v. Texas - Unreviewable: The Final Installment of the "Epic" Obamacare Trilogy

This article for the Cato Supreme Court Review—my fourth—considers the legal arguments that California v. Texas declined to reach.

I am happy to announce that my fourth article in the Cato Supreme Court review will be published on Constitution Day. And, if all goes to plan, I will make my first trip to Washington D.C. since early 2020.

Here is the abstract of Unreviewable: The Final Installment of the "Epic" Obamacare Trilogy:

Over the past decade, Obamacare has faced three existential legal challenges. And in each "installment [of the] epic Affordable Care Act trilogy," the Supreme Court rebuffed those attacks. First, NFIB v. Sebelius saved the ACA's individual mandate as an exercise of Congress's taxing power. Second, King v. Burwell held that the ACA, which subsidizes only health care exchanges "established by the State," also subsidizes the federal exchange. And this past term, California v. Texas held that the latest challenge to Obamacare was unreviewable. After three rounds, Obamacare remains undefeated before the Supreme Court.

And the vote wasn't even close. Seven members of the Court found that plaintiffs lacked standing. Justice Samuel Alito dissented with Justice Neil Gorsuch. They found that the state plaintiffs had standing, the mandate was unconstitutional, and certain portions of the ACA that injure the states should be enjoined. However, the majority and dissent did not address my preferred theory of standing-through-inseverability, which was also advanced by the solicitor general. This article for the Cato Supreme Court Review—my fourth—considers the legal arguments that California v. Texas declined to reach.

In the end, the ACA survived once again. Justice Alito wrote that "in all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue." He lamented, "once again the Court has found a way to protect the ACA." Justice Alito predicted, "[o]ur Affordable Care Act epic may go on." Soon enough, the trilogy will become a quadrilogy. You can check out of the Hotel California v. Texas any time you like. But I can never leave.

If you read the first page, you'll see a preview of the title of my next book.

Comments

[Brett Bellmore]

Entitlement programs remain the closest thing in government to immortality, and the ACA is absolutely an entitlement program.

It's just an entitlement program run off the books, by compelling an industry to sell its product below cost to designated customers. Man, I'd hope that model wouldn't spread to other products, but arguably it already did with the eviction moratorium.

[DaivdBehar]

The Supreme Court has a bias. It always favors big government.

[Sebastian Cremmington]

Nope, the subsidies make Obamacare policies profitable for the health insurance companies that sell them. Trump strengthened Obamacare because the Kushner family is heavily invested in the ACA Exchange subsidies through Oscar Health.

[Dan Schiavetta]

The Obamacare experience at the Supreme Court reflects its attempt to undo the taint of Bush v. Gore. No longer will it accept bad faith partisan arguments.

[Brett Bellmore]

You do realize that even the 'justices' nominated by Democrats thought that the Florida supreme court was off its rocker in 2000, right? They just disagreed about remedy.

(For the record, the proper remedy was in the hands of the House, not the Supreme court.)

And if the Supreme court stopped accepting bad faith partisan arguments, it would completely overturn our jurisprudence. Current constitutional jurisprudence is bad faith partisan arguments all the way down.

[Brett Bellmore]

And Roberts' ACA ruling wasn't even a bad faith partisan argument; None of the parties had proposed it.

[Dan Schiavetta]

Roberts did what he had to do. Bound by his own jurisprudence, which would have mitigated in favor of accepting the Republican arguments, he saw that they were advanced in bad faith and therefore could not be accepted.

[Mark Regan]

Pardon me. The United States made a Tax Power argument at pages 53-62 of its opening Supreme Court brief in NFIB, and at pages 21-25 of its NFIB reply brief.

[Brett Bellmore]

I stand corrected, then.

[Dan Schiavetta]

No, it was 5 - 4.

[Brett Bellmore]

It was 7-2 on the Florida supreme court's recount being an EPC violation. It was 5-4 only on the remedy; Two of the Court's 'liberal' justices thought the recount could still go forward if the EPC violation was remedied by issuing uniform counting standards.

[Dan Schiavetta]

Only two justices (Ginsburg, Breyer) had been appointed by Democrats.

It was good faith (albeit erroneous) for Breyer to accept the Equal Protection argument. It was bad faith for the conservative justices to accept it. Previously they had held that it could be applied only to race. Suddenly it applied also to Republican Presidential candidates.

[Brett Bellmore]

LOL! That's hilarious. You're actually claiming the exact same argument is good faith if accepted by a Democratic nominee, and bad faith if a Republican nominee. It didn't occur to me that you'd go there, heck, that there WAS such a "there" was too absurd for me to have contemplated.

[Dan Schiavetta]

Breyer followed his previous jurisprudence in favor of a candidate he opposed. The conservatives went against theirs in favor of a candidate they supported. It’s called integrity vs. being a hack.

[Brett Bellmore]

Wait, you're saying that the previous Republican precedent was that the EPC could only ever, under any circumstances, apply to race? That doesn't sound right.

[Dan Schiavetta]

This is a big topic to cover, but you can start with Rehnquist's dissents in Sugarman v. Dougall and Trimble v. Gordon. As for Thomas, one example is his dissent in M.L.B. v. S.L.J., and in Holder v. Hall he even declared that courts have no business adjudicating how a state decides to count its votes. As for O'Connor, see McCleskey v. Klemp.

[Brett Bellmore]

How a state decides to count its votes. Specifically, the state legislature, which is assigned this decision.

The problem in Bush v Dole was that the state supreme court was usurping the state legislature's authority, and had left the statutes it supposedly was enforcing far behind, giving them little to no weight.

The state hadn't decided to do what was going on, a few members of the state's judiciary had.

[apedad]

Brett, curious...

What remedy could the House provide?

[Brett Bellmore]

The Florida state legislature was preparing to order the original Bush slate of electors sent to Congress. If the Florida supreme court had ordered the Gore slate sent, the House would then have voted which slate to accept.

[apedad]

You want to point us to the paragraph in the Constitution where the House has that authority?

[Brett Bellmore]

That would be the 12th amendment, and the Electoral Count act of 1887 adopted pursuant to it.

Obviously if the House gets what purport to be two slates of EC votes from a single state, it has to decide which to count. The electoral count act details how they'd make that determination.

In this case, the original slate of EC votes as duly certified under state law, and the rump slate the state supreme court would presumably have certified contrary to that law if they'd finally recounted enough times to get a different outcome.

[apedad]

OK, learned something new, thanks.

3 U.S. Code § 15 - Counting electoral votes in Congress

https://www.law.cornell.edu/uscode/text/3/15

[Sebastian Cremmington]

Wrong, the issue in 2000 was Katherine Harris refusing to do her job because Bush was initially in the lead and so doing nothing was her best course of action to ensure Bush eventually came out the victor.

[Stephen Lathrop]

For the record, the proper remedy was in the hands of the House, not the Supreme court.

Maybe so. But it wouldn't have got the job done. In the midst of uncertainty, to assure Bush the win, it was necessary to stop the recounts, not wait them out and see what happened.

One thing subsequent investigation showed was that there were a lot of Gore "overvotes"—folks whose ballots showed not only a normal vote for Gore, but a Gore write-in as well. During the initial count, those ballots were all being discarded. There was a risk that during the recounts, at least in D-friendly precincts, someone would say, "Wait a minute, there is no doubt at all who those folks voted for, those ballots should count."

If I understand correctly, there were far more than enough Gore overvotes to swing the election. It may not be clear, however, that applying the same standard to Bush ballots would have left Gore in the lead. Reports which address the subject of Bush overvotes seem to show he did not get enough to offset Gore's total, but the analysis gets complicated and murky, because in addition to overvotes showing clear intent—which Gore won handily—there were notably more overvotes where there was unresolvable ambiguity. That opens the door to demands that all overvotes be treated alike, and the apparent Gore advantage should be discarded in the service of a uniform standard.

I read the Supreme Court mumbling about different standards applied during recounts as both a reference to that, and as a manifestation of partisan concern. Stopping the recounts was a way to get rid of the problem without taking the partisan risk of finding out what the outcome of applying a uniform standard on unambiguous overvotes might show.

That is a mix of my speculation, and reporting about overvote results. I don't like to have to speculate. But the Court's choice to stop the recounts—and then announce what it did was not precedent—seems so peculiar that it justifies a bit of speculative curiosity. Explaining why the Supreme Court did what it did remains the biggest mystery of the election.

[Dan Schiavetta]

I don't think it was a mystery. As one commentator put it bluntly, "They simply wanted Bush to win."

[Brett Bellmore]

"There was a risk that during the recounts, at least in D-friendly precincts, someone would say, “Wait a minute, there is no doubt at all who those folks voted for, those ballots should count.” "

IOW, there was a risk that someone would say, "F it! We're going to violate state election laws!"

[Ben of Houston]

I have to agree. The New York Times actually went in and reviewed all of the ballots afterwards themselves. There were actually ways that Gore would have won, but in every ballot counting method that was legal to use in Florida, Bush won. They used to even have an interactive tool showing this.

We have to follow the laws that exist, not the laws as we wish them to be.

Stop beating this dead horse to death.

[Sebastian Cremmington]

NYTimes’ investigation is irrelevant—the U of Chicago investigation found Gore won by every standard except 1. That said the fact Harris was a Republican would have impacted a recount had she done her job so it’s intellectually dishonest to believe a statewide recount would have been fair and impartial.

[Dan Schiavetta]

You don’t think it was an Equal Protection violation for all the “overvotes” to be rejected ?

[Dan Schiavetta]

It may be a dead horse, but due to the Bush Administration’s lack of seriousness as to al Qaeda, it was 3000 dead people in New York.

[Josh R]

I was ready to comment on Josh's paper and didn't expect this to be thread on Bush v. Gore. But since the discussion has gone that way, I would just like to add a plurality of Florida voters left the polls thinking they voted for Gore. Regardless of the legal haggling, that fact is what has always bothered me about the outcome.

[Brett Bellmore]

I suppose it's possible that a very narrow plurality did think that they'd done so. Very narrow indeed.

What of it? We can only go by the votes people did cast, not the votes they intended to cast. If somebody, intending to vote for candidate A, mistakenly checks the box for candidate B, (What supposedly happened in Palm Beach.) then never mind what they intended to do, they DID vote for candidate B.

The cases where somebody over-voted by checking the box for candidate A, AND writing in candidate A, are a bit more troubling. But you do have to draw a line somewhere, if you're not going to have free style, anything goes voting, which would probably raise more interpretation issues than it would settle.

Over-votes where two different candidates were selected leave us with no objective way to assign the vote, and thus should properly not be counted.

I'd note that the scantron voting system that was in use when I lived in Michigan would automatically kick back ballots with over-votes when the voter tried to insert them in the ballot box through the scanner. Then the voter would be given a fresh ballot to vote, and their rejected ballot destroyed. I highly recommend this system, and it would have resolved at least the over-vote problem in Florida.

[Josh R]

What of it?

The wrong (by the will of the voters) person became president. Of course, we have to go by actual votes and not intended votes. But the fact that shitty ballot design led to the wrong outcome is very disturbing.

[Sebastian Cremmington]

Overvote would most likely be checking Gore and then for some reason writing Gore’s name at the bottom or doing the same thing with other candidates.