In which my "More idiotic than King vs. Burwell" slam turns out NOT to be hyperbole

Last Thursday, in my initial alarm-sounding post about the federal #TexasFoldEm lawsuit against the ACA, I used this headline:

ACA about to be torpedoed by a lawsuit even more idiotic than King vs. Burwell???

Law Professor and ACA expert Nicholas Bagley blasted both the case itself and the Dept. of Justice's response in an epic post which also coined the #TexasFoldEm moniker for this travesty:

For those of you just coming to the case, this is from my earlier recap:

In their complaint, the states [including Texas and other red states] point out (rightly) that the Supreme Court upheld the ACA in NFIB v. Sebelius only because the individual mandate was a tax and (rightly) that Congress has now repealed the penalty for going without insurance. As the states see it, the freestanding requirement to get insurance, which is still on the books, is therefore unconstitutional. Because it’s unconstitutional, the courts must invalidate the entire ACA—lock, stock, and barrel.

If that argument about the “inseverability” of the amended mandated from the rest of the ACA sounds inane, that’s because it is. When Congress first adopted the individual mandate in 2010, it was an essential part of a broader scheme. But Congress is always free to amend its statutes, even to omit what it previously thought was essential. That’s what Congress did when it zeroed out the mandate.

So we don’t have to speculate what Congress would’ve done if it had a choice between invalidating the ACA’s insurance reforms or just invalidating the mandate. Congress made that choice. For a court to now reject it in the service of an absurd argument about severability would be the rankest kind of judicial activism.

Without question, then, there’s an argument to be made in the ACA’s defense. And the Justice Department has a durable, longstanding, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense. This brief puts that commitment to the torch.

I am at a loss for words to explain how big of a deal this is.

OK, but Bagley is also on record as being a pretty staunch defender of the ACA in general, right? If you want a "balanced" view of the case, how about someone who was behind the last major legal challenge to the ACA...the infamous King vs. Burwell lawsuit?

As a refresher, the basic argument of King vs. Burwell was this:

  • The ACA set up exchanges in each state where people could enroll in ACA-compliant healthcare policies those eligible could receive tax credits to help pay the premiums.
  • A dozen or so states set up their own exchanges, but the other three dozen chose to stick with an exchange set up by the federal government (
  • The exact text of the ACA itself states that the tax credits are available in an exchange "...established by the State".
  • The lawsuit argued that this meant that only the state-based exchanges could legally provide tax credits, not the federal exchange.

The Supreme Court ruled, correctly, that this was utter nonsense, since was effectively acting as an exchange "established by" those states, and that a larger reading of the ACA as a whole made it perfectly clear that yes, counts.

Who was behind that case? Well, the higher profile name is a guy from the CATO Institute named Michael Cannon...but the other guy most associated with it is another CATO guy and law professor at Case Western Reserve University named Jonathan Adler.

Here's what Adler has to say about the #TexasFoldEm lawsuit:

...If that were all there was to the suit, it would be rather inconsequential. By eliminating the tax, Congress has made the mandate unenforceable. Failing to comply has no effect, so the mandate is no more than a hortatory statement buried in the U.S. Code. So who cares? (And how do states or anyone else have standing to challenge an unenforced and unenforceable statutory provision anyway?)

The reason the suit matters is because the states claim that the individual mandate – even now that it is unenforced and unenforceable – is inseverable from the rest of the ACA, so if the mandate is unconstitutional, the rest of the law must go with it. This is a brazen and audacious claim.

Even more audacious than the states' claim, however, may be the Justice Department's response, which effectively concedes the states' claims, and gives the states a pass on standing.

...It is common for the Justice Department to make strained arguments in defense of questionable federal laws. After all, we expect the Justice Department to defend the laws Congress enacts. Here, however, the Justice Department is doing the opposite. It is straining not to defend a law Congress enacted -- and doing so terribly.

...The non-severability claim is particularly problematic here because the plaintiff states are seeking to use an alleged constitutional infirmity created by amendments to the statute as a basis for invalidating previously enacted parts of the statute. Moreover, the non-severability claim is based upon Congressional findings made about the original statute, not the subsequent revisions. Severability does not work this way.

...However this inquiry is conceived, there is no basis whatsoever for the states' argument or Justice Department's concession on severability.

...By zeroing out the tax for failing to purchase qualifying health insurance, Congress rendered the mandate unenforceable while leaving the insurance reforms in place. So Congress unquestionably did what the Justice Department is claiming Congress would not do.

Considering whether remaining parts of the law would be "fully operative" without the offending provisions only makes the Justice Department's position even weaker.

I recommend reading the whole thing, but the bottom line is that even one of the main guys behind King vs. Burwell agrees that the #TexasFoldEm case is utter BS...and more importantly, that the DOJ's failure to defend against it is even worse.