Saturday, December 22, 2018

A Different Border Wall: Judgments of Legal Quality in Texas v. United States

Neil Siegel

In his December 15 post on Texas v. United States ("Off the Wall and on the Wall in the Age of Trump"), Jack Balkin brings to bear the historicist sensibility that partially informs his magnificent 2011 book, Living Originalism. In the post, he opines that Judge Evan O'Connor invalidated all of the Affordable Care Act (ACA) "on (in [Balkin's] own view) pretty dicey legal grounds." But Balkin moves quickly from the perspective of the individual participant in the constitutional system to the perspective of the historicist appreciator of how the system functions. He explains why the arguments accepted by Judge O'Connor are already "on the wall," albeit "barely." In addition, Balkin in effect lays out a road map that, if followed by the right groups of people -- especially a unified Republican Party and conservative intellectuals who work on the arguments -- will rapidly place those arguments firmly on the wall. Most significantly, Balkin writes that "judgments of legal quality and social influence mutually shape each other," but his post focuses almost entirely on how social influence shapes judgments of legal quality, and not the other way around. 

My own view -- and I would bet that Balkin actually agrees with me, although he did not emphasize this point -- is that judgments of legal quality and the character trait of intellectual integrity are a significant part of the reason why conservative intellectuals and many professional Republicans are far from unified on the merits of this particular challenge to the constitutionality of the ACA. 


1. One could reject most or all of modern Article III standing doctrine and try to reground it in a new, substantially more permissive understanding of Article III. But until such an attempt succeeds, it is legally untenable for Judge O'Connor to have concluded that two obviously ideological plaintiffs in Texas have Article III standing because they feel coerced by a "mandate" that will require them to make a shared responsibility payment of $0 if they remain uninsured -- a "mandate" that gives Americans the lawful choice between complying and making the shared responsibility payment. See Nicholas Bagley's incisive analysis.

2. As Marty Lederman and I have separately explained, it is legally untenable for Judge O'Connor to have held that Congress requires an enumerated power to impose no material or expressive consequences on anyone.

3. And as a bipartisan group of experts on severability made clear, it is legally untenable for Judge O'Connor to have concluded in effect that Congress in 2017 accomplished through the reconciliation process what congressional opponents of the ACA lacked the votes to accomplish using the ordinary legislative process -- that is, repeal the entire statute merely by zeroing out the shared responsibility payment and leaving the rest of the ACA in place.

 C'mon, man.

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