The Most Effective Resistance Today Is Coming From the Courts

(Bloomberg Opinion) -- The decision on Friday by a federal court judge in Texas to block the Affordable Care Act nationwide is a poetically perfect year-end twist in the Obamacare saga. Not since the first New Deal has a generational social change been so mired in judicial interference.

Democrats on the streets may think they are pursuing the resistance against President Donald Trump. But the most effective resistance in the U.S. today is judicial resistance — in this case, by a conservative George W. Bush appointee to the signature initiative of Barack Obama’s administration.

The epic tale of the ACA begins back in 2010, when President Obama and a Democratic House and Senate managed to pass the landmark law in what retrospectively seems like an extremely brief shining moment of progressive consensus and power.

Conservative judicial backlash began almost immediately. In January 2011, a federal district judge in Florida struck down the law on the theory that the individual mandate requiring Americans to buy health insurance — then considered the linchpin of the whole ACA — exceeded Congress’s constitutional power. The U.S. Court of Appeals for the 11th Circuit agreed, and the case went to the U.S. Supreme Court.

In June 2012, the justices decided the case. The outcome featured a complex compromise crafted by Chief Justice John Roberts. On the one hand, Roberts upheld the individual mandate as a tax that therefore fell within congressional authority. On the other hand, Roberts held that the law went too far in telling states that they would lose existing Medicaid funding unless they accepted the Medicaid extension that the law offered to cover millions of people who otherwise might not be able to afford health insurance.

As it turned out, the Roberts compromise left the ACA alive, but badly weakened. A law designed to bring the U.S. into the company of civilized nations that guarantee universal health care failed to accomplish that the goal. Numerous states decided not to take the Medicaid extension once it was no longer being forced on them.

Perhaps more important, the Supreme Court ruling helped Republicans keep the ACA alive as a campaign issue. The Obama administration’s original plan was to make the ACA into an entitlement that would become popular because it was so broadly available, on the model of Social Security. The Supreme Court ruling effectively stopped the ACA from seeming like an established fact, weakening the Democrats’ long-term plan to overcome the law’s lack of bipartisan support.

Consequently, the Republicans who took the House and Senate alongside Trump’s election in 2016 set out to “repeal and replace” the ACA. That effort mostly failed, providing some evidence that the law, even in its reduced form, had support from a few key moderate Republicans.

But Congress did manage to pass a provision repealing the penalty used to enforce the individual mandate. That provision is the one used by the Texas judge to try to strike down the law as a whole.

Here’s the logic (if you can call it that): Roberts upheld the individual mandate because he said it amounted to a tax on people who didn’t buy health insurance — and Congress has the power to lay taxes. Now that there is no financial penalty, the Texas judge said, there is no tax. Consequently, the requirement to buy coverage is no longer constitutional. And, he added, once that requirement is eliminated, the whole law should be struck down.

There are two obvious, related problems with this theory. Because the mandate doesn’t come with any penalty any more, it makes no difference if it is a tax or something else — it’s a dead letter. No one has to follow it. And because no one has to follow it, it isn’t integral to the rest of the law anymore.

In theory, the whole of the ACA could sink if only healthy people buy insurance. But that hasn’t happened so far. And if it does, it will be Congress’s fault. It makes zero sense for a court to cancel the rest of the legislation on the theory that the mandate effectively removed by Congress was itself unconstitutional.

The Supreme Court may well have to weigh in on this latest iteration of the legal challenge. If it does, my money is on Roberts rejecting the lower court’s ruling.

But that’s not the main point about the latest round. Rather, it’s that the whole series of legal interventions marks a continued, concerted effort to use the courts to block legislation that couldn’t quite be repealed by Congress despite Republicans’ best efforts.

The last time that happened was when the Supreme Court blocked the first version of the New Deal, sending the Roosevelt administration back to the drawing board in frustration. Eventually, Roosevelt threatened to pack the Supreme Court, and it backed down from its obstructionist stance.

To be sure, the ACA lacked the broad-based support that Roosevelt’s efforts possessed. The post-2008 economy, though stressed, wasn’t in a depression. In this sense, the court’s resistance is perhaps less extreme than it was in the 1930s.

But as resistance goes, this judicial iteration is certainly the most significant in more than 80 years. It’s been enhanced by the rapid appointment of judges to the federal bench under President Trump.

Even if Democrats elect a president and get both chambers of Congress back in 2020, the resistance in black robes will be with them for at least a generation.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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