The Latest Obamacare Case Is Too Crazy for Brett Kavanaugh

During Tuesday’s oral arguments, the new median justice seemed reluctant to dismantle the landmark health care law.

Brett Kavanaugh in profile
Justice Brett Kavanaugh in Washington in December 2018. Jabin Botsford/Getty Images

The passage of the Affordable Care Act in 2010 appears to have inflicted a permanent psychic wound on a large chunk of the conservative legal movement. Time and again, Republicans have asked the courts to either sabotage or eradicate the entire law. But the Supreme Court just won’t bite. Just seven months ago, by an 8–1 vote, the court shot down another GOP effort to hobble the law. Republicans, however, refuse to accept defeat. On Tuesday, the Supreme Court heard arguments in the most frivolous case yet against the law, a bad-faith effort to strip health insurance from 23 million people on the basis of a conspiracy theory. It looks like the court will reject this invitation to obliterate the health care system.

Republicans have sought to kill the ACA in court since the moment it was signed. Their first attempt ended in a painful defeat when SCOTUS upheld most of the law in 2012’s NFIB v. Sebelius by a 5–4 vote. Chief Justice John Roberts sustained the individual mandate, which directed all Americans to buy health insurance, as an exercise of Congress’ taxing power. Roberts held that the mandate wasn’t really a command but a choice: Americans could either purchase health insurance or pay a penalty to the IRS. This penalty, he explained, qualified as a tax for constitutional purposes. Thus, the centerpiece of the law could stand.

Roberts’ decision did not end Republican attacks on the ACA. Many movement lawyers apparently viewed the law’s continued existence as a personal affront. In 2010, conservative attorney Michael Greve captured his party’s disgust at a strategy meeting over the ACA. “This bastard has to be killed as a matter of political hygiene,” Greve declared. “I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”

This history is key to understanding Tuesday’s case at the Supreme Court, Texas v. California, the most indefensible product of ACA Derangement Syndrome yet. In 2017, after failing to repeal the entire law, the Republican-controlled Congress zeroed out the penalty for Americans who don’t buy health insurance. As a result, the mandate still exists on paper, but there’s no penalty for ignoring it. Texas, backed by a coalition of Republican attorneys general, promptly sued. They alleged that, by zeroing out the mandate, Congress did not really make it optional but rather compulsory. And because it no longer collects revenue, Republicans argued, the mandate can no longer qualify as a tax and must be struck down.

This theory is, at best, highly doubtful. After all, how can a mandate force anybody to do anything when it carries a zero dollar penalty? Who is injured when the federal government directs uninsured Americans to pay zero dollars to the IRS? But that debate is academic, because if the courts did invalidate the mandate, nothing would happen: It’s already inoperative. Republicans’ real goal is to take down the rest of the law. And so they argued that the mandate is “inseverable” from the remainder of the ACA—meaning that if it falls, the whole law must fall with it. The Trump administration signed onto this argument, abandoning the prior administration’s defense of the law and urging courts to destroy it instead.

An ultrapartisan federal judge bought this theory in 2018. An equally partisan federal appeals court then partially adopted it, asking only exactly how much of the ACA must go down with the mandate. These decisions persuaded many progressives that the law was in real danger, and Senate Democrats grilled Amy Coney Barrett about the case during her confirmation hearings.

But during arguments on Tuesday, a majority of the Supreme Court balked at the idea of ripping up a landmark statute because of one faulty provision. Everyone agrees that the three remaining  liberal justices won’t abolish the ACA. Roberts, too, seems unlikely to demolish the law after sticking his neck out to save it in the past. But what about Brett Kavanaugh, the court’s new median justice? He didn’t keep us in suspense for long. About halfway through arguments, Kavanaugh tipped his hand to Don Verrilli, who defended the ACA on behalf of the House of Representatives. “I tend to agree with you,” Kavanaugh said, “that it’s a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”

A few minutes later, Kavanaugh said much the same thing to Kyle Hawkins, who argued against the ACA on behalf of Texas. If the mandate is unconstitutional, Kavanaugh said, “it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place.” He asked Hawkins: “How do you get around those precedents on severability, which seem on point here?”

Hawkins claimed that the ACA contains an “inseverability clause”—meaning Congress instructed courts to tear down the entire law if any part of it must fall. He is wrong, and Kavanaugh told him as much. “Congress knows how to write an inseverability clause,” the justice told Hawkins, “and that is not the language that they chose here.”

Roberts backed Kavanaugh in even more explicit terms. “I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down,” he told Hawkins, “when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.” In other words, shouldn’t we assume that Congress did exactly what it wanted to do? Why should the courts hack away the rest of the law when Congress chose to keep it in place? Repealing a law that Congress chose to keep, Roberts noted, is “not our job.”

Not every justice was so level-headed. Justice Samuel Alito suggested to Verrilli that “a lot of members” of Congress may have zeroed out the ACA’s mandate “precisely because they wanted the whole thing to fall.” His comment echoed a statement by Jennifer Walker Elrod, a federal appeals court judge, who mused that some members of Congress may have thought: “Aha, this is the silver bullet that’s going to undo Obamacare!” This “silver bullet” theory is absolutely insane: There is simply no evidence whatsoever that anyone thought zeroing out the mandate would kill the rest of the law. It’s a conspiracy theory designed to shore up the argument that Congress secretly hoped that the courts would be forced to topple the law if it imposed no penalty. It is troubling that a Supreme Court justice would endorse such an objectively false claim.

There’s more to fret about, if you’re so inclined: As many as six conservative justices seemed to accept that Texas has standing to challenge the zeroed-out mandate even though it doesn’t affect the state. (That doesn’t mean Texas wins, just that it has a right to sue.) These justices also seemed open to Texas’ claim that the mandate is now unconstitutional, despite the fact that it doesn’t make anybody do anything. It was hard to get a read on Barrett, who asked academic questions that revealed little about her thinking.

But Barrett’s vote probably won’t matter. Texas v. California may be Kavanaugh’s time to shine—or, more precisely, his time to prove that there’s a limit to his tolerance for bad-faith Republican legal arguments. Actually, Kavanaugh may have previewed his approach to this case in a decision he wrote five months ago that refused to liquidate an entire law because one provision was unlawful. “Constitutional litigation is not a game of gotcha against Congress,” he wrote, “where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.”

Texas v. California is one big game of gotcha. It’s certainly the laziest, least persuasive challenge conservatives have mounted to the ACA so far; in a better world, the 18 Republican attorneys general who brought this case would be cast out of the legal community, scorned for wasting the courts’ time with sheer nonsense. But ACA Derangement Syndrome runs deep, even in the federal judiciary. And at least we now know that it has not yet afflicted a majority of the Supreme Court.