My column yesterday on the Obamacare lawsuit before the Supreme Court generated a number of objections. To recap, my main points were that the case is very unlikely to lead to the invalidation of Obamacare, and claims that Judge Barrett has already signaled that she would vote in favor of the suit are mistaken.
Several Republican-appointed judges have taken the case seriously; who’s to say the ones on the Supreme Court won’t? Only one federal judge has ruled that the law should be struck down on the basis of the argument in the lawsuit. On appeal, two judges were persuaded that the individual mandate (or what’s left of it) is unconstitutional but were not persuaded by the district judge’s conclusion that the whole law therefore has to go, and thus ordered him to redo his analysis. The fact that the Supreme Court took the case, as both parties requested, does not indicate that any justice is leaning toward the district judge’s conclusion.
A lot of Republican attorneys general back the case; why wouldn’t Republican-appointed justices think similarly? AGs and judges have different interests and assess the merit of legal arguments in different ways. Four Democratic states sued the federal government for limiting the state-and-local tax deduction. It went nowhere in court.
Or, combining the last two objections, consider the Hosanna-Tabor case from 2012. Two federal-appeals courts concluded that the First Amendment did not protect a religious organization’s freedom to make employment decisions. The Obama administration, which was full of clever lawyers, agreed. The Supreme Court ruled otherwise, unanimously.
Republicans should be held accountable for pushing a lawsuit to get rid of Obamacare with no plan for dealing with the aftermath. I agree that Republicans are doing exactly that, and they’re wrong to do it. Criticize away. None of that nullifies my points: The lawsuit is unlikely to succeed, Barrett’s criticisms of past rulings do not imply she is likely to support this lawsuit, etc.