Thursday, June 17, 2021

Ken Paxton Shoulda Hired a Legal Philosopher

Joseph Fishkin

It has been a morning of overlapping consensus at the Supreme Court: in both California v. Texas and Fulton v. Philadelphia, the Justices found their way to a broad (7-2 or 9-0) resolution of questions far narrower than what the plaintiffs in these lawsuits had hoped to win from a far-right court.

In the case of California v. Texas—and what an appropriate name for what is essentially a purely partisan lawsuit, the latest long-shot effort to unravel the Affordable Care Act through judicial activism rather than legislation—the Court simply found that the plaintiffs had no standing. This is fairly plausible. How, exactly, is somebody “injured” by the language in the ACA that says, yes you have to purchase insurance, but no, there will be no penalty if you don’t?

The plaintiffs’ best answer was this. Look, people are actually motivated to obey the law. At least some people. And some people will understand the ACA, despite the zeroing out of the penalty, as a “mandate” that they must purchase insurance. Therefore, some “small number” of people might conceivably buy insurance which they would not otherwise have bought, absent this language in the statute (the “mandate”). (The “small number” phrase comes from a sentence in a CBO report, which was actually saying, at _most_ this is going to be a small number, and we’re not sure who or how many if any.) Plaintiff states like Texas claim that as long as SOMEONE in Texas is buying insurance who otherwise would not have, Texas has to pay some money, which would give it standing. This argument also seems to me fairly plausible.

What the Court holds in California v. Texas is basically that the plaintiffs here didn’t offer any actual evidence that anybody is changing their behavior in response to the penalty-less mandate. Maybe someone somewhere is indeed buying insurance who wouldn’t otherwise. (Suppose there’s someone whose specific situation leaves them exactly in equipoise about insurance vs no insurance, with all the substantial benefits and costs balancing out, so that the thing that finally pushes them over the line to buy it is the penalty-less mandate—and their desire to obey the law as they understand it. It’s a big country; surely there are some people like that somewhere?) But the plaintiffs simply did not prove that anybody is doing this, Justice Breyer writes for the seven-Justice majority. “Nor does it explain why they might do so.” (italics in original)

That last sentence caught me. It seems that these plaintiffs were sorely in need of a legal philosopher! It takes some argument and explanation (perhaps also some evidence would be nice, but at the very least, an argument, not offered by the plaintiffs here) for why it is that people—at least a “small number”—might not be like Justice Oliver Wendell Holmes’ bad man—that is, why people might believe that we have good reason to obey the law, even when we know for sure that there will be no negative consequences of disobeying it. For a tiny fraction of the taxpayer dollars Texas and the other red states blew on this wildly ill-conceived challenge, they could have hired an empirical philosopher to study whether people in their states in fact say they are more likely to buy insurance, because they want to follow the mandate. It would be interesting to know the results of such a study; that way Texas AG Ken Paxton and his allies could at least marginally advance human knowledge, in their Quixotic quest to sicken and kill thousands of Texas citizens by throwing them off their health insurance plans and returning to the days of denials of coverage for pre-existing conditions.

To be very clear here: if the Court had held that plaintiffs did have standing, the plaintiffs should certainly have lost anyway, and one would hope the vote would have been at least 7-2, because the plaintiffs’ severability argument was hopelessly, pathetically bad. However, instead of a fight about that, the Court chose a simpler approach. Standing was, as usual, a completely discretionary doctrine that allowed the Court to choose whether to pursue the rest of an argument, or not, depending on the Court’s internal politics or any other factor.

The Court’s approach won a broad consensus. (Justice Thomas was fully and unambiguously on board as vote #7, writing separately only to trash the ACA on unrelated grounds and rehash past dissents in other cases.) The Court’s approach avoided the need to say anything about the Commerce Clause—and for that we can all be grateful! But it does have the odd effect of elevating the Holmesian bad man to a kind of default, so that a party trying to argue that people are not like that needs some evidence or argument for “why.” Perhaps the Texas AG’s office should immediately invest in some CLE in legal philosophy. That certainly would be a better use of their time and money than filing lawsuits like this one—especially from the perspective of the beleaguered citizens of Texas, who, by and large, just want their health insurance.

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