Can an "Off the Wall" Procedural Argument (Invalidating Obamacare) Climb the Wall?

by Michael C. Dorf

Judge O'Connor's decision late last week striking down the entire Affordable Care Act is, to use a phrase coined by Yale Law Professor Jack Balkin, "off the wall." Balkin developed this idea in academic articles, but he applied it, fittingly, to the original challenge to the ACA. In a 2012 article in The Atlantic, Balkin wrote:
Off-the-wall arguments are those most well-trained lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and therefore may become law, especially if brought before judges likely to be sympathetic to them. The history of American constitutional development, in large part, has been the history of formerly crazy arguments moving from off the wall to on the wall, and then being adopted by courts.
Balkin's latest deployment of the wall metaphor insightfully explores the question whether Judge O'Connor's opinion will end up on the wall. As Balkin's astute explanation of the on-the-wall/off-the-wall distinction indicates, answering that question calls for expertise in something other than law: group psychology, sociology, and perhaps movement politics. Accordingly, I do not consider myself especially well qualified to answer it. With that disclaimer, here I'll discuss what makes the ruling off the wall for now. I'll then venture a thought about how off-the-wall procedural arguments can climb the wall. (Yes, I'm aware that I'm mixing metaphors. I deliberately use "climb the wall" as a playful means of describing how an argument goes from off to on the wall.)

Let's begin with a very brief recap. In NFIB v. Sebelius, five justices took the view that Congress lacked power under the Commerce Clause to impose an individual mandate to purchase health insurance, but a different five justices sustained the mandate pursuant to Congress's power to tax, because the law imposed a tax on (most) people who were subject to the mandate but did not purchase health insurance. Judge O'Connor's reasoning can be boiled down to three moves:

(1)  When Congress reset the tax owed for failure to obtain mandated insurance to $0 -- as it did in late 2017 as part of a package of changes to tax laws -- it eliminated the Taxing Power as a source of power for the mandate, and thus rendered the mandate unconstitutional.

(2) The Congress that enacted the original ACA in 2010 intended for the mandate to work in conjunction with the rest of the Act, so invalidation of the mandate results in invalidation of every other provision of the Act, as those other provisions are not "severable" from the mandate.

(3) That conclusion is not contradicted by the fact that Congress in 2017 repealed the mandate while leaving the rest of the law intact, because the 2017 law did not repeal the mandate; it only repealed the tax liability for failure to comply with the mandate.

Each of those steps is, in my view, wrong, but I don't now want to engage the merits. For a good explanation of what's wrong with (1), I recommend Professor Marty Lederman's post on Balkinization.  For a good explanation of what's wrong with (2) and (3), I recommend the NY Times op-ed by Professors Jonathan Adler and Abbe Gluck. Lederman calls a logical implication of Judge O'Connor's reasoning "absurd." Adler and Gluck think that Judge O'Connor's position with respect to severability is not just wrong but "ridiculous." In other words, Lederman, Adler, and Gluck regard Judge O'Connor's opinion as off the wall.

Could Judge O'Connor's argument nonetheless climb the wall? The smart money would say no. It takes sustained effort to move an argument from off to on the wall. Typically that effort comes from social or political movement actors. That's how the arguments against the original ACA moved from off to on the wall. But, as Balkin explains in his latest post, so far that's not happening here.

Well before the 2012 case got to the Supreme Court, many mainstream conservative lawyers thought that the ACA was beyond the power of Congress. Some sort of similar validation could occur with respect to Judge O'Connor's opinion, but it hasn't happened yet. As of right now, Adler and some other conservative/libertarian lawyers and law professors who thought the original ACA was unconstitutional think Judge O'Connor's opinion is not just wrong but ridiculous. The only prominent dissenting voice I have heard is that of Professor Josh Blackman. I mean no disrespect to Blackman when I say that one such dissenting voice does not change the overall impression that the argument remains off the wall (at least for now).

Before going further, I want to be clear that despite the seemingly pejorative nature of the term "off the wall," an argument can be off the wall and good -- both in a purely normative sense that it aims at a just result and in a logical sense. What makes an argument off the wall is often a matter of social convention or values rather than legal reasoning as such.

Let's take the argument that laws denying same-sex couples the right to marry are a form of illicit sex discrimination. This argument, based on the so-called Loving analogy, gained popularity in the 1990s. Although it was not the formal basis for the Supreme Court's ruling in Obergefell v. Hodges, it got a respectful reception by the second decade of the 21st century. It was on the wall. But earlier it was off the wall. Consider that since 1973, laws employing sex-based classifications have been subject to heightened judicial scrutiny. Suppose that that same year a same-sex couple had argued that laws denying them the right to marry should be subject to and fail heightened scrutiny on the ground that such laws are sex-based. As I said, that's now a respectable argument. But in 1973 it would have failed as off the wall. We know that because the Court rejected that very argument without even thinking it needed to hear oral argument just one year earlier in Baker v. Nelson. Given the embeddedness of norms regarding sexual orientation in social practices and attitudes (of straight people), that and other arguments for a constitutional right to same-sex marriage could not move from off the wall to on the wall in the mere space of a year.

Eventually they did, however. Why? Because of sustained engagement in what my colleague Sid Tarrow calls "contentious politics" by people who favored expanded rights for gays and lesbians.

As David Cole shows in his book Engines of Liberty, the same sort of thing can happen regardless of political valence. The version of the Second Amendment endorsed by the Supreme Court in 2008 was the product of sustained activism. (Reva Siegel made the same point earlier in the pages of the Harvard Law Review). That's not to say the arguments the Court accepted in the Heller case were flawed (although I think they are); it is only to say that what made the arguments persuasive in 2008 was not the arguments themselves, or at least not the arguments alone.

Seen in this context, one might imagine that the Tea Party movement is to the ACA what the gay rights movement and the gun rights movement were to Obergefell and Heller, respectively. And up to a point I think that's right. In 2010-2012, the Tea Partiers mobilized to make attractive to conservative jurists a libertarian construction of congressional power. Elite conservative lawyers and legal academics translated that activism into a legal argument. That's how they got four and a half votes to strike down the ACA in 2012.

This time feels different. However inapt I and other liberals thought that the broccoli hypothetical was in the first constitutional challenge to Obamacare, it was the sort of vivid metaphor that captured real stakes for real people. By contrast, it is hard to imagine a social or political movement coalescing behind an expansive view of nonseverability, which is a technical legal doctrine that most people have never heard of and does not have an obvious political valence even among elites. Both conservatives striking down a law favored by liberals and liberals striking down a law favored by conservatives will be happy with broad notions of nonseverability; conversely, each side will favor maximal severability when laws it generally likes are being struck down, so as to preserve as much as possible of the content of those laws.

That said, there are generally liberal and generally conservative views about technical procedural doctrines. Other things being equal, conservatives favor restrictive rules of standing, limits on justiciability, and limits on remedies. The problem for Judge O'Connor's opinion is that he's not on the conservative side of those questions. It's not at all clear that the plaintiffs should have been granted standing, as Adler explained back in June. And as Professor Ilya Somin (another prominent libertarian/conservative who was on the other side in the earlier rounds) notes, the nonseverability holding contradicts core principles about severability.

But now I want to sound a note of caution or perhaps even alarm: When the ideological stakes are high enough, even substantive doctrinal priors can yield, as Bush v. Gore illustrates. Procedural doctrinal priors may provide even less resistance to strong ideological motivation.

In May of this year, Justice Thomas wrote a concurrence in the sports betting case in which he argued that when a court strikes down one part of a law, it should not even consider whether the rest of the law is severable from the invalid part unless the parties before the court have standing to challenge those other parts. As I wrote in a blog post at the time, Justice Thomas's position is intriguing and subtle. Although I disagreed with parts of it, I gave him considerable credit for raising the issue. BUT, I caveated my praise for Justice Thomas by noting that it contradicted the broad view of nonseverability that he and three other justices endorsed in NFIB. That broad view of nonseverability formed the basis for Judge O'Connor's nonseverability reasoning last week.

How do we explain the fact that Justice Thomas went from a very broad view of nonseverability in the strongly ideologically salient first Obamacare case in 2012 to a very narrow view (so narrow as not even to consider questions of interconnectedness with a law's other provisions when one is struck down) in the not-at-all ideologically salient sports betting case in 2018? It's possible that Justice Thomas changed his mind about severability between 2012 and 2018. However, it seems more likely that Justice Thomas has come to a general view about severability based on generally conservative principles of judicial restraint, but that these general views will give way in concrete cases where they do not lead to ideologically conservative results.

I don't mean that as a critique of Justice Thomas in particular. Rather, my point is that all Justices' commitments on procedural doctrines tend to be weaker than their more directly ideological commitments. We see conservative justices finding standing to challenge affirmative action programs where, based on the procedural questions alone, we might have thought they would come out the other way. Ditto for liberal justices rejecting standing when they want to duck a case.

Thus, I end with a worry. It is harder for a procedural argument to go from off the wall to on the wall than it is for a substantive argument to make that trip, because contentious politics does not coalesce behind procedural arguments. However, because the justices care less about procedure than they care about substance, an off-the-wall procedural argument may be able to succeed in particular concrete cases, even if it stays off the wall. It will simply be ignored or disingenuously distinguished in future cases.

That said, I continue to think that Judge O'Connor's very broad invalidation of the ACA will not ultimately hold up, but that prediction is based at least as much on my understanding of the underlying politics (bad for Republican politicians who claim to care about protecting people with pre-existing conditions and want to keep the other popular provisions of the ACA) and the justices' psychology (especially that of CJ Roberts). But as I said at the outset, I'm not an expert in either politics or psychology, so there's no good reason why anyone should ascribe much importance to my prediction.