Late last Friday, Judge Reed O’Connor struck down the entirety of the Affordable Care Act, sowing uncertainty about the health law’s status right before the last day for ACA enrollment this year.
Eminent and knowledgeable voices from a variety of political perspectives swiftly agreed that O’Connor’s ruling in Texas v. Azar faces dim prospects as a strictly legal matter. His decision depends in part on rehashing arguments about the individual mandate that were already rejected by the Supreme Court in 2012 and that are in many ways less promising now that the mandate has already been neutered by Congress’ reduction of the tax penalty to zero. Indeed, analysts have pointed to O’Connor’s unusual substitution of declaratory judgment in place of the injunctive relief requested by the plaintiffs as a sign that even O’Connor recognizes that his legal position is entrepreneurial at best.
In this light, the functional purpose of O’Connor’s decision is something of a mystery. Some have speculated that O’Connor—a former Republican Senate staffer turned district court judge—is angling for President Donald Trump’s attention in a bid for higher judicial office. Others have noted that striking down high-profile progressive law is just O’Connor’s M.O., to the point that his Northern District of Texas, Fort Worth Division has become the principal venue for conservative forum shoppers. Whatever O’Connor’s greater motivations, it’s worth asking why a Hail Mary ACA invalidation might appeal so much to Trump conservatives? Actual elimination of the ACA has never proved a winning political strategy: Support for repeal has dipped as low as 13 percent, and repeal has not become law even with the House, Senate, and presidency all under GOP control. Republicans have tried in vain to devise any kind of replacement, practically admitting that successful repeal would leave them like the “dog that caught the car,” with no idea what to do with it next. So it seems clear that wreaking havoc upon the health care system is not likely still a political goal of the Republican Party.
What if the merits of the case and the tangible outcome aren’t the point, though? Reading through the 55 pages of the decision leaves the distinct impression that O’Connor is playing on a different chessboard. He has gone out of his way to repurpose arguments made by ACA defenders against them. Justice Ruth Bader Ginsburg, dissenting in part from the 2012 case that upheld the mandate only on the grounds of Congress’ power to tax, argued that the mandate should also have been upheld as necessary and proper to carrying out the ACA’s other constitutional purposes, such as preventing discrimination against those with pre-existing conditions. O’Connor plugs those dissenting arguments into his severability analysis to say that his present-day striking of the mandate must bring down the rest of the ACA too—never mind that Chief Justice John Roberts, along with four other conservative justices, had expressly rejected Ginsburg’s reasoning.
Yet O’Connor’s severability analysis cites Ginsburg 13 times, giving the dissent more than double the attention he gives Roberts’ dispositive opinion, which appears but six times in that section. Whatever O’Connor’s purpose was in relying upon Ginsburg’s minority opinion, it was not to strengthen the legal prospects.
The decision reads, instead, as a gotcha, a way to “troll the libs,” and the judicial equivalent of the Russian mischief campaigns that played out on Facebook during the 2016 election. These campaigns aimed to polarize, to undermine certainty, to destabilize standards to the point where Americans are not just normatively, but epistemologically, divided, and thereby to forge room for “alternative facts.” A powerful weapon in this war is implausible deniability: the more outlandish the claim, the less acceptable the legal argument, the more it serves to disrupt the prevailing standards, which are tribally perceived to be standards set by unelected and undemocratic shadow elites. The outrage and incredulity of the critics are what make these trolling campaigns effective. Undermining Obamacare is legally unviable and politically unpopular, yet the symbolic value of the project seems to grow in proportion with its foolishness.
Recent events have only heightened the sense that dismantling Obamacare is a fool’s errand. Even the Trump administration seemed to acknowledge the imprudence of play-acting repeal when earlier this year it asked O’Connor to postpone his decision, to a time that Democrats noted was conveniently after the midterms. That delay bought Republican candidates time they needed to claim they supported continuing protections for people with pre-existing conditions, but even that disingenuousness did not save the party from devastating losses in the House. Once Democrats take over that body next month, they will almost certainly force Republicans to vote on whether to challenge this terrible ruling or let it stand—compounding the potential political damage via this seemingly pointless judicial decision.
Trump Republicans may not find in Texas v. Azar the validation of a Supreme Court win, or the affirmation of the electorate, or even the balm of successfully dismantling Obamacare. Instead, O’Connor is satisfying an even greater yearning, signaling to an aggrieved base that merits don’t have to matter. The decision tells them, much as Trump’s election did, that the people viewed as losers can turn around and be surprise winners, that those who scoff at your claims may not always know best and can still get kicked in the face now and again.
O’Connor’s opinion has provoked all the high-minded indignation one might expect. But perhaps that is exactly the point. What better way to shore up tribal unity than to manufacture a display of outraged outside experts who claim to know better than you and agitate for your defeat? Contrary to the assumption of those who focus on the merits of the legal argument, the message this decision sends works best precisely when the legal prospects for the case are worst.
The point is not to win but to feel like you’re winning by losing. Given the facts, this case should accomplish that quite well.
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