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Anti-ACA Lawyers “Winning” Strategy: Compare Justice Kennedy To Slave Owners

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The legal battle to destroy the ACA (Obamacare) has taken a bizarre turn. Following oral argument last week, Court watchers speculated that the outcome of this case rests in the hands of Justice Kennedy and the Chief Justice. In a desperate attempt to salvage a weak case, anti-ACA lawyers compared Justice Kennedy to a confederate slave owner.

I’m far from an expert, but I’ll venture that when the fate of your case rests in the hands of one or two judges, you might not want to insult the judges.

The plaintiffs in King v. Burwell tried to persuade the Supreme Court that the ACA intended to restrict federal health care tax credits to states that set up their own exchanges. Under that reading of the law, healthcare would be unattainable for people who live in states without their own exchanges and who rely on Federal tax credits to purchase their health insurance.

The anti-ACA lawyers are upset because Justice Kennedy noticed there is a “serious constitutional problem” with the plaintiffs’ argument. Specifically, Kennedy suggested that if the Court agrees with the plaintiffs, the result will be cutting off tax credits in nearly three dozen states. The immediate result is millions of people losing their health insurance. If the Court rules in favor of the plaintiffs, the American Public Health Association predicts that nearly 10,000 people will die unnecessarily every year.

Insurance companies in the affected states will lose the revenue needed to pay their sick customers’ claims. Remaining customers will see dramatic premium increases to compensate for the company’s loss of revenue, meaning more people will drop their insurance simply because they can’t afford it. The cycle continues in a death spiral that could lead to a complete collapse of the states’ healthcare systems.

Kennedy expressed concern about the potential for a death spiral and cited a doctrine that precludes the Federal government from coercing states. If plaintiffs won, states would be coerced into a choice: having their own exchanges or destroying their insurance markets. Therefore, Kennedy reasoned, the Court should void interpreting the ACA this way. This reasoning caused Rivkin et al to panic over the prospect of Kennedy ruling in favor of allowing the tax credits to stand.

Lawyers siding with the plaintiffs reacted by misrepresenting Kennedy’s concerns and insulting Justice Kennedy on the opinion pages and conservative websites.

One of those articles was penned by David Rivkin and Elizabeth Foley for Politico Magazine. Rivkin, who was part of the Reagan and George H.W. Bush Administrations fought the first court battle against the ACA at the trial level. Foley is a law professor who wrote a book on the Tea Party’s idea of constitutionalism.

Rivkin and Foley mischaracterize Kennedy’s concerns. First, they tried to claim that Kennedy was concerned about clear statements by congress when in fact, he was expressing concern about congress coercing the states. They spent the bulk of their commentary arguing that a rule about clear statements shouldn’t stop the court from cutting off tax credits.

Then they went completely off the rails by raising slavery to support their claim that states rights concerns, including Kennedy’s concern, shouldn’t apply to the ACA. They claimed that cutting off subsidies may hurt individuals who live in states without exchanges and therefore use the federal exchange; but that isn’t coercion because the law doesn’t deny funds to the state itself. They conveniently overlook the coercive factor lies in the options of either creating an exchange so that individuals can benefit from Federal healthcare subsidies or the state’s healthcare system will be destroyed.

Rivken and Foley rely on the distinction between federal laws designed to benefit the states vs. federal laws designed to benefit a state’s citizens to suggest that Kennedy’s concerns are akin to the confederate states’ defense of slavery.

Incidentally, the last time the law professors’ argument was seriously advanced was during the pre-Civil War era, when Confederate states asserted that various federal government actions, such as those devaluing a slave-owner’s property interest in his slaves, harmed state sovereignty by harming the state’s citizens. Indeed, the Nullification Crisis of 1832, the brainchild of Sen. John Calhoun of South Carolina, was based on the argument that states didn’t have to obey a federal tariff law because it harmed Southern farmers. This political philosophy—that states are harmed when their citizens are harmed in some way by the federal government—was the heart of the Confederate states’ defense of slavery.” We fought a Civil War to put this notion to rest.

Well aside from their very special understanding of why we fought the civil war, Rivkin and Foley either misunderstood Kennedy’s argument or misrepresented it on purpose. They also got it wrong when they claimed that the clear statement and coercion doctrines don’t apply if a law “merely” hurts a person within a state.

As Ian Milhiser discussed, “In explaining why there are limits on how Congress can structure conditional grant programs, the Supreme Court explained in Pennhurst State School and Hospital v. Halderman that such legislation “is much in the nature of a contract.”

Just as unclear language in a contract is construed against the drafter, an unclear federal law will be read in a way that is most favorable for the states.

As for the coercion restriction, for the first time, the Supreme Court held in NFIB v. Sebelius that a federal law violated the prohibition on coercion based on arguments made by David Rivkin. This is the same David Rivkin who now claims the same rule defends slavery. Karma just bit Rivkin on the backside.