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When Tribalism Trumps Originalism

The Insane Jurisprudence of the Win-at-All-Costs Republican Party

A Republican-appointed federal district court judge from Texas, named Reed O’Connor, issued a less than timely ruling just before Christmas stating in absolute terms that there is no question that Obamacare (the Affordable Care Act — ACA) is nothing less than unconstitutional. In other words, the judge was firm in his decision, which he evidently considered essentially a no-brainer from a legal perspective. Yet, the no-brainer nature of the decision is, I would argue, in another direction. For starters, the opinion that the law is unconstitutional actually contradicts U.S. Supreme Court decisions from 2012 and 2015. You would think a judge might know this. Nonetheless, let’s not focus on the judge’s questionable legal acumen. The problem lies, I suggest, in another direction, one more political: his partisan tribalism was showing.

It might take time before we can get a definitive ruling on this, but there is already bipartisan statements from people who opposed Obamacare joining with its supporters to highlight the extreme partisan character of this nonsensical decision. For now, the judge’s decision does not go into effect while appeals work their way through the courts. Yet, already the Trump Administration, in a rare partisan move for a sitting president, has chosen to add to the outrageousness of the decision by announcing it will not defend existing law in this case. Normally, presidents, as represented by the Solicitor General, seek to uphold an existing law even if they did not support it, because they are obligated under the Constitution to “take care that the laws be faithfully executed.” Instead, it will fall to attorney generals in the states to appeal the decision and save the ACA and the coverage it provides to millions of people who before its enactment could not afford or access health insurance.

This flagrant disregard for the rule of law and sound public policy is a hallmark of Trump’s presidency — and actually his very being as a citizen and human being. Yet, that is not what is most distinctive about these developments. Instead, what is unusual is the extreme illogic of the judge’s decision and what that says about Trumpism overall. The decision shows that the Republican Party, including its appointed judges who are sworn to rule on the basis of law and not politics, will say and do anything, even the opposite of the party’s longstanding conservative principles, just so they can score political points in the current, transformed political landscape and win ongoing policy contests. In this case of legal decision-making, this means that political tribalism has come to trump the Republican Party’s commitment to the legal doctrine of “originalism,” i.e., when judges rule by relying on the original meaning of a law as intended by its authors. This case is in fact paradigmatic of how the Trumpified Republican Party now defies not just legal logic, but logic in general in its quest to say and do anything to get its way politically, even to the point of perverting its own principle commitments.

O’Connor’s decision is bad enough, but the tortured logic he used to get to it is worse. The judge agreed with plaintiffs, the state of Texas and 19 others who offered a stunningly contradictory argument that Obamacare is both unconstitutionally coercive of individuals who are required to buy insurance and it is also no longer financially sustainable because the tax penalty of the individual mandate has been repealed. (The repeal goes into effect in 2019.)

The judge emphasizes the assumption widely shared when Obamacare was first enacted that the individual mandate was crucial to its financing. Without the mandate, healthy low-cost individuals might forego paying for health insurance, leaving insurance companies to jack-up rates on the high-cost sick people who did buy insurance. In other words, without the mandate, the insurance market exchanges established under Obamacare would fail to offer affordable insurance. The judge’s decision however applies this logic not just to the exchanges but to all of Obamacare, including, for instance, the expansion of state Medicaid programs or the many other protections and improvements the reform law put in place. For the judge, without the individual mandate the entire system must fall.

Yet, how can a mandate be unconstitutionally coercive if it no longer can be enforced? And since when does under-financing a federal program mean its end? In an era of growing deficits, this seems to strain logic, political, legal or just the ordinary kind. In addition, just because there is no mandate it does not mean that healthy low-cost people will not sign up for insurance. O’Connor himself ironically made this same point. Yet, for the judge this is evidence of unconstitutional coercion where individuals still felt obligated to get insurance even if there were no penalty for not doing so. Further, states have independently been moving to re-impose the tax penalty with their own mandates. In addition, just because the national individual mandate ends no legal logic in the history of U.S. jurisprudence insists the whole rest of the law must go as well. Instead, the principle of “severability” comes into play here which says that when part of the law is invalidated, other parts of the law can be separated from that and continue to be enforced if the invalidated part is not integral to the other parts. Even if we accept that no individual mandate means higher rates for purchased insurance, this has nothing at all to do with the rest of Obamacare, such as expanding the public Medicaid program that provides free health insurance to low-income people or other reforms like preventing insurance denials to those with pre-existing conditions.

Yet, the fallacies of this ruling reach the level of outright hypocrisy once we consider that this is a decision that purports to be drawn from conservative jurisprudence when it in fact actually contravenes it. The decision is written to be consistent with the originalist judicial philosophy of that leading conservative jurist of recent decades, Antonin Scalia. Originalism, as noted above, argues that judges should rely as best as possible on the original meaning of a law as intended by its authors. In this case, the argument is that the Congress in 2010 intended Obamacare to exist only if there is an individual mandate and since that mandate’s tax is now gone so Obamacare must also go by the wayside.

Yet, as others have pointed out, the judge overlooks that Congress in the 2017 tax law continued Obamacare even as it zeroed out the tax penalty of the individual mandate. In other words, the judge is ignoring what the Congress in 2017 explicitly chose to do which was to continue Obamacare even without an enforceable individual mandate. So, this is not originalism at all. Instead, it is its opposite. Instead, the judge is imposing his partisan wish to do away with Obamacare in place of Congress’s explicit actions not to do so. The judge suggests he knows better what Congress intended to do than what it actually, and explicitly, did. In other words, O’Connor’s decision is the ultimate partisan move of the most tribalistic sort. It shows how even among Republican-backed judges today we see tribalistic politics overriding the conservative movement’s commitment to its cherished originalism.

O’Connor’s decision suggests a number of different things. Either that originalism is fraudulent and vulnerable to being invalidated by partisan political objectives, or that it is a product of the growing tendency among conservative Republicans to cast aside their principles to demonstrate a tribalistic loyalty to Trumpism, including its focus on undoing everything achieved by Barack Obama. It is probably both. Be that as it may, the decision to overturn Obamacare is the height of political manipulation of the law to achieve socially disastrous consequences in the name of scoring political points with its base of supporters. It is emblematic of a Republican Party that is willing to abandon all political principle to win its policy objectives at any cost. Now with the Republicans in the Senate rushing to stuff the judiciary with extreme conservatives nominated by Trump, this weaponizing of the law for political gain is likely to become an even more common practice by the Republicans. The appellate courts and the Supreme Court can however at least stop the madness of this one decision in order to show that there are limits to the politicization of the law. Here’s to hoping this decision and the moral vacuity it represents does not stand.

Sanford F. Schram is Professor of Political Science at Hunter College. 

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