Saturday, December 15, 2018

Texas v. U.S: Off the Wall and On the Wall in the Age of Trump


Judge Reed O'Connor's opinion in Texas v. U.S. has declared all of Obamacare unconstitutional based on (in my own view) pretty dicey legal grounds. Commentators are trashing it, predicting that the 5th Circuit will reverse it, and that it has absolutely no chance before the Supreme Court.

I have seen this movie before. (In fact, I had a minor supporting role.)

Assume that the commentators are right and the judge's arguments are not even close to being persuasive given existing legal precedents. Does that mean that the position is "off-the-wall?" Suppose it was off-the-wall six months ago, before the judge issued his final decision. What about now? Have the arguments against Obamacare moved from "off-the-wall" to "on-the-wall," as they did in NFIB v. Sebelius and King v. Burwell?

As I've explained elsewhere, lawyers understand themselves to be part of a learned profession that develops and gives reasons for legal conclusions.  Asking whether a legal claim is "off-the-wall" is a question of whether it is a reasonable claim, or at least one on which reasonable minds can differ.

But reasonableness in the law-- which involves a host of professional, prudential and practical judgments beyond simple logic-- is shaped by social influence, whether or not lawyers care to admit it.

In saying this, I am most certainly *not* saying that legal argument and legal craft are mere disguises for political ideology or that they have no independent significance. I have been trained as a lawyer and I express opinions about the quality of legal arguments all the time. It is my job to do so. Thus, whether lawyers are willing to support a given claim depends on their perception of the quality of the legal reasoning and the quality of the legal arguments that can be advanced for it. But the perceived quality of legal reasoning and legal arguments are not exogenous from social influence. Indeed, judgments of legal quality and social influence mutually shape each other. This mutual influence is what allows legal arguments to move from off-the-wall to on-the-wall, as they have so many times before in American history.

What moves arguments from off-the-wall to on-the-wall depends a great deal on who is willing to put their reputation and authority behind the arguments and stand up for them. If enough important and influential people say that a legal argument is not crazy but one on which reasonable minds can differ--or even the best legal argument, all things considered--then it becomes on-the-wall, although it is by no means guaranteed to succeed ultimately in the courts.

How should we assess the arguments in Texas v. U.S. from this perspective? As of today, a federal judge and the President of the United States support the result in Texas v. U.S.. The Department of Justice supported a narrower result-- striking down only the mandate and parts of the insurance regulations. The judge went much further, declaring the whole statute unconstitutional.

This level of support would seem to suggest that Judge O'Connor's arguments are no longer off-the-wall. It has become an issue on which reasonable minds can differ. But, as usual in the age of Trump, the issue is a little more complicated.

If this argument is now on the wall, it is still only barely so. Much depends on whether other people will decide to add their institutional authority and influence to that of the judge, the DOJ, and President Trump. We would ordinarily think that the assertion by a sitting President and his Department of Justice that a legal argument is a good one would be a very powerful influencer of professional legal opinion. That is because the President ordinarily brings many people along with him, including Administration lawyers, members of his party, sympathetic media outlets and civil society groups, and legal intellectuals allied with his Administration. But on this question, as in so many things, Trump presents a special case, and so we need to know a bit more about the institutional context.

I've written that one of the most important factors in moving an argument from off the wall to on the wall is whether a major political party gets behind it. The Republican Party almost immediately closed ranks in the first two Obamacare suits: NFIB v. Sebelius and King v. Burwell, and did so early on in the litigation. That meant that Republican politicians made speeches trumpeting the legal claims, the party's affiliated legal intellectuals engaged in serious intellectual work buttressing and strengthening the legal arguments, and the media organizations affiliated with the Republican Party and the conservative movement repeated and broadcast the claims. Because so many powerful and influential people made these arguments, mainstream media felt compelled to treat them as serious legal claims and this also helped support their reasonableness.

The composition of the federal bench also matters, because an argument is more likely to be thought plausible, and possibly succeed, if many federal judges are likely to entertain it and take it seriously.

Let's apply this analysis to Texas v. U.S.

In Sebelius, the first district court decision striking down Obamacare came only after the party had already closed ranks, after legal intellectuals had done significant amounts of work, and after conservative media had been promoting the claims for many months.

Texas v. U.S. is a bit different. It was covered far less and the Party's and the conservative movement's affiliated legal intellectuals were not uniform in supporting the litigation. Trump's support has had less influence than one would expect, because his opinion is not taken seriously by many conservative legal intellectuals.

Perhaps equally important, when Republicans sought to repeal Obamacare in 2017, they discovered that there was strong public support for Medicaid and especially for protection of preexisting conditions. As a result, many Republicans ran in the 2018 elections claiming that they supported and had always supported legal protection for preexisting conditions. Democrats charged them with hypocrisy, arguing that Republicans were insincere in their support of protecting preexisting conditions and that what they really wanted was to scrap Obamacare's protections entirely.

At this point, if Republicans support the result in Texas v. U.S.--a case in which the Trump Administration sought to get rid of Obamacare's preexisting conditions protections, and the judge wiped out the entire bill--they will have do some fancy rhetorical footwork to make their positions coherent and avoid being viewed as hypocrites. I don't doubt that they can do it-- professional politicians are very good at rhetorical dancing. I only question whether Republican politicians as a group will decide that this is the best approach.  We will soon find out whether some Republican politicians, instead of offering full-throated support for the litigation (as they did in Sebelius), prefer to hem and haw, change the subject, argue that the process should be left to the courts, and bide their time.

The political context is also different in another respect.  Obama provided a powerful foil to unite Republican politicians, the party's affiliated media and conservative legal intellectuals in a quest to right wrongs and preserve constitutional values. Sebelius and King became something of a crusade against the overreaching nanny state and the tyrannical Barack Obama. By contrast, Texas v. U.S. occurs when the Republicans are no longer in opposition and are faced with the problems of governance. They control the White House and the Senate; and the party is still smarting from an electoral defeat in the House caused in part by Republicans' positions on health care. President Trump's scandals probably haven't helped matters, either: as the walls close in on Trump, politicians are looking to maintain their own political viability.

Likewise, the conservative movement's legal intellectuals put enormous effort into sharpening and refining the arguments in Sebelius and King both before the litigation and during it. I don't see the same degree of investment in Texas v. U.S. In fact, some conservative legal intellectuals (Jonathan Adler immediately comes to mind) have been quite dubious of the DOJ's arguments in Texas v. U.S. The lesson of Sebelius is that if you give enough very smart lawyers enough time to work on a legal problem, they can come up with creditable arguments for many (but not all) legal positions, even if, when the task started, the position seemed hopeless.  But this takes time and the work of many agile minds. I haven't seen that level of effort in this case, at least yet.

Finally, I don't have the sense that conservative media have been banging the drum for the constitutional arguments in Texas v. U.S. quite as loudly as they were in the first Obamacare case. It remains to be seen whether they will now become energized around it. (It does offer a useful distraction from Trump's many scandals.)

On the other hand, the composition of the federal judiciary may be *more* hospitable to the claims in Texas v. U.S. than it was during the Obama years, because of the McConnell/Trump strategy of appointing as many conservative federal judges and Justices as possible as quickly as possible.

Given these differences, it will be very important to see what Republican politicians, affiliated legal intellectuals and media do in response to this decision. If they unite behind Judge O'Connor's conclusion that all of Obamacare is unconstitutional, and if legal intellectuals work steadily on refining the judge's arguments, these legal claims will be very much on-the-wall and the chances of success will be thereby enhanced both in the 5th Circuit and before the Supreme Court. But if a substantial number of Republican politicians distance themselves, if conservative legal intellectuals are divided or unenthusiastic, and if conservative media do not push the arguments vigorously, this case will look quite different than Sebelius or King.

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