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But we won’t do that


As the oral argument suggested, the Supreme Court rejected the latest challenge to the Affordable Care Act, solely on standing grounds. They deserve no credit for this, but it’s better than the alternative. Alito and Gorsuch would take healthcare away from tens of millions of people, because 1)a tax that is now $0 is a tyrannical expansion of federal power and 2)the $0 tax cannot be severed from the rest of the statute, including its expansion of Medicaid, although it has literally no impact on anyone, which is profoundly embarrassing. (One striking aspect of the first major challenge to the ACA was how absurdly trivial the asserted liberty interest was taken at face value — the formal argument was that large numbers of people should lose access to healthcare because the federal government imposed a “penalty” rather than a “tax.” This argument is even sillier. But as Alito’s litany of complaints about the regulatory burden of helping people get insurance and making sure that insurance actually covers something makes clear, the real but hidden argument is that the Constitution enacted Ms. Ayn Rand’s Atlas Shrugged. It’s terrifying how close this came to succeeding in the first instance.)

There is a lesson here. Pundits and court watchers invested in the Legitimacy of the Institution will point to decisions like this as evidence that the Court is Not In Fact Political. But the median vote on the Court affects caseflow — states and individual litigants will bring all kinds of crazy challenges from the right, and some of them will go to far even for the Trump Court. On the other hand, much more reasonable challenges from the left won’t be brought because everyone would recognize them as a waste of money, or the Court will just refuse to grant cert from a negative decision by a Republican-dominated Circuit Court. When evaluating the ideology of the Court, you can’t just look at who wins but what kinds of cases the Court is taking and not taking.

…it should also be noted that the Alito/Gorsuch dissent embraces the most farcical argument advanced by the various Joshes Hawley in trying to defend their obviously indefensible position on severability:

“Some members of the House really wanted to repeal the ACA, so we should interpret the statute as if Congress had intended to repeal the ACA, even though it had declined to do so months earlier.” I see no flaws in this logic!

I swear that probably the first time this blog got a substantial amount of public attention was my series of “contrarian” [i.e. as obvious as pointing out that the Pacific Ocean has water in it but contrary to a dominant media narrative] posts about how Sam Alito was a hardcore reactionary rather than the reasonable moderate he was being portrayed as by most of the mainstream media. My innovative methodology was to look at his judicial opinions rather than focusing on questions like “does he like baseball?” What a country!

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