2018 Roberts Court
Credit: Fred Schilling, Collection of the Supreme Court of the United States

Last Friday, a federal district judge in Texas ruled that the Affordable Care Act is invalid, in its entirety, because of changes made to the individual mandate as part of last year’s tax law. Many observers and scholars, noting that the argument is laughable as a legal matter, are predicting that the decision will be overruled on appeal, and are cautioning liberals against overreaction. But in doing so, they’re making the same mistake that prevented so many from recognizing the danger presented by the two previous Obamacare challenges—both of which were similarly dismissed at first, before swiftly becoming serious threats as the Republican Party coalesced behind the theories.

Here is the lesson of the previous ACA challenges, newly relevant in light of last week’s ruling: a legal argument, no matter how unsound it may seem, is not “frivolous” when it has the unified support of the political party whose appointees make up a majority of the Supreme Court. And when assessing the likely success of party-supported challenges to political achievements by the opposition, legal experts should put down their casebooks and head over to Politico. Because the truth is that the ACA will be in legal danger for as long as the Republican Party rejects its legitimacy. Indeed, all progressive policy victories—those already achieved and those yet to come—will be vulnerable to party-supported legal challenge, even if the legal arguments are sham.

It is worth recalling the history of the first two major Obamacare lawsuits. In the first challenge, conservative activists argued that the individual mandate—the law’s requirement that most people either have insurance or pay a penalty—exceeded Congress’s power to “regulate” commerce. As law professor Jack Balkin wrote for the Atlantic, during the initial stages of litigation  “the idea that the Act’s mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy.” But this off-the-wall argument ultimately came to be accepted by each of the Supreme Court’s five Republican-appointed justices, although Chief Justice John Roberts ultimately saved the mandate by classifying it as an exercise of Congress’s taxing power. (The current lawsuit uses a warped and incredibly cynical inversion this same argument: because the Trump tax cut set the penalty at zero dollars, the mandate can no longer be justified as a tax—requiring, Judge Reed O’Connor incredibly concluded, the rest of the law to fall.)

The second challenge had a similar trajectory. The conservative architects of lawsuit argued that somewhat ambiguous text in the Internal Revenue Code’s Section 36B—a quirk uncovered by a South Carolina employment benefits lawyer nearly a year after the ACA’s enactment—was evidence of congressional intent to deny tens of billions in federal subsidies to the citizens of uncooperative states. Legal observers initially concluded the case was a “slam dunk” for the government. But the lawsuit nevertheless advanced all the way to the Supreme Court, where three conservative justices (Samuel Alito, Clarence Thomas, and Antonin Scalia) adopted the challengers’ arguments wholesale.

In each case, the speed with which kooky, implausible theories became mainstream opinions among elite conservatives was stunning. But today, we should be prepared. The uncomfortable truth is that we do not yet know how the newest ACA litigation will be resolved—for the simple reason that legal questions in highly partisan cases are not always resolved by clear precedent or airtight logic.

As the challenges to the ACA illustrate, the Republican Party has become increasingly sophisticated at using courts to relitigate battles that they can’t win through the democratic process. A key part of that strategy is unifying behind novel legal theories. Political actors can initiate high-profile legal challenges, for example by coordinating among their state attorneys general. Indeed, each of the three ACA challenges has been initiated by Republican AGs—this latest round with the additional support of Trump’s Department of Justice. Politicians can then communicate the political significance of a challenge to the courts, and assure them that a ruling in their favor won’t lead to chaos. Finally, partisans can help provide a common vocabulary of constitutional meaning that frames their lawsuit as advancing important public values.  For example, Republican politicians effectively used the famous broccoli hypothetical to connect their challenge to a general theme of individual liberty.

Republicans deployed all three mechanisms—in a process that I have previously labeled “partisan constitutionalism”—to advance each of these assaults on the ACA. The playbook could well be successful this time around, particularly if Donald Trump gets to make another Supreme Court appointment between now and the time this challenge advances to that stage. And even if the current lawsuit does ultimately fall short, future party-supported challenges to other progressive priorities are going to be successful. Recognizing this new reality, there are three important lessons to keep in mind.

First, legal experts should resist the urge to make predictions about the likely success of these challenges by analyzing the strength of the legal claims alone. Health law professor Nicholas Bagley, for example, argued in the Washington Post that the present challenge can be distinguished from the first two because this one is uniquely “frivolous.” But at the time they were filed, every frontal challenge to the ACA was similarly dismissed; the point is that they did not remain unthinkable for long. Once an entire political party unites behind a legal argument—no matter how silly it may be as a strictly legal matter—it becomes, by definition, a mainstream theory, and thus in the realm of plausibility for judicial actors who are ideologically receptive to that party’s goals. Down can become up with terrifying speed.

Even opponents of the ACA have acknowledged that the strength of their legal challenges is shaped by party politics. Speaking at a conference of the American Enterprise Institute in 2013, conservative legal scholar Randy Barnett, one of the architects of the original individual mandate challenge, reminded the audience that “an argument that many people thought frivolous is only going to get traction in the courts if there’s a political valence that allows it to get traction.” That is why it is so important that the current President of the United States—along with his Department of Justice—have argued, both in court and in the public sphere, that the latest challenge is not only serious but legally correct.

President Trump tweeted over the weekend, “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster!” Reacting to Friday’s ruling, Congressman Kevin Brady, who chairs the House Ways and Means Committee, told reporters that it is “not surprising” that a court ruled the ACA unconstitutional. Look for more of this in the coming months; statements like these are likely to be more predictive of the final outcome than legal precedent. (Notably, the Wall Street Journal’s editorial page came out Sunday in opposition of this latest lawsuit, arguing that it “could backfire on Republicans”—a setback for the challengers that will resonate as deeply as any amicus brief could.)

Second, Democrats should recognize the threat this current challenge represents and force Republicans to pay a political price. They should tell everyone who will listen that there is a Republican lawsuit poised to eliminate coverage for pre-existing conditions and increase healthcare costs for millions of Americans. The recent Republican effort to repeal the ACA through legislation polled at a dismal 12 percent, and proved to be toxic during the midterms. Recent history shows the importance of unified party support for this sort of partisan legal challenge. If Republican politicians are made to own the true consequences of their latest judicial repeal effort, it will be harder for them to unify behind the legal theory, which in turn will make it harder for judges to accept it.

Third, we need to grapple with the uncomfortable reality that every progressive achievement in our lifetime may now be subject to the veto of an ultra-conservative, unaccountable Supreme Court majority. Certainly, it is comforting to imagine that the ACA is uniquely vulnerable to this sort of hysterical, lawless judicial rulings. For example, Vox’s Ezra Klein argued over the weekend that the current challenge—although, in his view, “unlikely to survive appeal”—shows why Democrats will try to pass Medicare For All, presumably under the logic that such a policy would be immune to legal assault (because surely we can assume that Medicare is safely constitutional). But the lesson to draw from Friday’s ruling is that policy design and legal precedent do not alone decide whether a law survives legal challenge. Reactionary judges serving lifetime appointments may still opt to strike it down based on whatever novel theory is fed to some red state attorney general.

Liberals should not assume that what made the ACA vulnerable to legal challenge was its design, rather than Republicans’ hostility to the goal of universal coverage achieved through redistribution. Medicare For All will not be safe from this Court for the same reasons the ACA is not now. If all this seems hysterical, recall that the entire Republican Party has agreed, as a matter of dogma, that tax breaks for the wealthiest Americans will increase government revenue and that all of climate science is fake news. And when it comes to constitutional interpretation, the “truth” really is up for grabs to any litigant able to count votes to five. If tomorrow’s conservative activists are called upon to develop arguments for why a recently enacted Medicare For All bill represents a gross violation of essential liberties, I wouldn’t bet against their being able to do so. There are few real limits to this game.

Nor is this dynamic confined to health policy. Progressives may now dream about mandated paid leave, taxing carbon emissions, fixing money in politics, aggressive antitrust enforcement, employment guarantees, and other policy priorities. But  even if Democrats are to eventually regain unified control of Congress and pass those agenda items, all will be vulnerable to the whims of conservative justices who were nominated precisely because of their demonstrated hostility to such goals.

This is no small detail. Indeed, these legal challenges should be viewed in the context of the antidemocratic power grabs we are witnessing in purple states like North Carolina, Michigan, and Wisconsin: as attempts to nullify the result of lost elections, reflecting an apparent Republican belief that majorities supporting their political opponents have no legitimate claim to power. It is precisely for this reason that Republicans are rushing to stack the federal judiciary with young activists who can be trusted—over course of their lifetime appointments—not only to uphold attempts to undermine democratic processes but also, where that fails, to strike down progressive legislation that might likely result from fair elections and a truly representative democracy. Democrats must continue to develop a policy agenda that is responsive to the many problems our country faces—but they must at the same time develop strategies for protecting this ambitious agenda from an increasingly hostile judiciary.

The near-success of the first two Obamacare lawsuits surprised legal observers who failed to grasp the dynamics of partisan constitutionalism.  The implications of this new judicial function, both for litigation and appointments, call into question many long-held assumptions about the available pathways for—and obstacles to—policy change, as well as the role of courts in our constitutional system. These are uncharted waters, and that reality should unsettle us all.

Brian Highsmith

Follow Brian on Twitter @bd_highsmith. Brian Highsmith is a Skadden Fellow at the National Consumer Law Center. He was a policy adviser at the White House National Economic Council from 2012 to 2014, where his portfolio included issues relating to the U.S. Postal Service.