Persuading the courts to accept originalism is a long-term project, and involves changing the culture of the legal profession.
Mike Rappaport had an interesting post the other day about the Pacific Legal Foundation’s Origination Clause challenge to the Affordable Care Act. I’m looking forward to his legal analysis in promised future posts. Herewith a few words on my friend Jack Balkin’s riff, here and here, on the political context.
“Off the wall” ideas, Jack’s general theory goes, may become “on the wall” and even binding constitutional law if their advocates can build enough political steam. Law has nothing to do with it: see the lunatic Commerce Clause theory of NFIB v. Sebelius, which prevailed (and now has to be taught even at Yale Law School). PLF’s case, Jack writes, illustrates that this won’t be the end. Movement conservatives, he writes,
will bring challenge after challenge to Obamacare — until they run out of plaintiffs, or money, or both — because they genuinely believe that health care reform is both unconstitutional and a grave threat to human liberty. So if the Origination Clause challenge fails, expect to see future challenges based on other parts of the Constitution. And it won’t matter one bit whether or not most law professors think these challenges are frivolous. […]
And once the constitutional challenges run out, expect challenges to the implementation of the Affordable Care Act based on statutory interpretation and administrative law. (Several of these are either in the planning stages or have already begun.) If there’s a way to gum up the works of health care reform, you can expect that opponents of Obamacare will try it.
Among the challenges Jack alludes to is a September 21 complaint by the State of Oklahoma. Jon Adler has a brief description and a link to the complaint here. That case will have legs. (I’ll have more in forthcoming posts.) And it, or lawsuits like it, will “gum up the works.” The ACA, you see, is a finely wrought, well-oiled machinery. It could be run with smooth, fearsome efficiency from Mrs. Sebelius’s HQ. And, we will be told shortly, it would have worked—but for the cabals of right-wing nihilists and their black-robed enablers.
Reality check: as Scott Gottlieb and others have described, the monstrous contraption that is the ACA is already crumbling and collapsing at all ends, for reasons that have nothing to do with past or pending litigation and everything to do with the insane notion of running a health care system for 350 million people out of an HHS Fuehrerbunker, under a “law” that was cobbled together by a bunch of staffers in a few Red Bull sessions and then crammed down regardless of content or consequences. ACA “implementation” is a tabletop exercise: Mrs. Sebelius and her strategists are commandeering troops and resources they do not possess, and the ACA would drown in a sea of litigation—by providers, insurers, employers, unions, beneficiaries, pension plans, state administrators—even if the entire right-wing conspiracy folded its tents tomorrow.
A very serious case can be made that conservatives, and lawyers in particular, should in fact keep their hands off all this—not so much to nip the Left’s incipient Dolchstosslegende in the bud (after NFIB, that’s water under the bridge) but because the spectacular self-destruction of Progressivism’s proudest accomplishment could be an object-lesson for the country. Moreover, it would be fun to watch—
if this were Absurdistan or the Peephole’s Republic of Bangthedish. But it isn’t (yet), and so it is imperative to hasten the ACA’s collapse. Above all, the rule-of-law message matters: the ACA isn’t the kind of thing you can foist on this country, in that fashion.
That is not an invitation to let a thousand off-the-wall flowers bloom. Pace Jack Balkin, many federal judges can actually tell a credible legal argument from an ideological fantasy. And they will often credit the former while rejecting the latter, even if their lines don’t always track the ones drawn in New Haven. Serious challenges abound; and merit pursuit. More soon.