There is an odd sense of deja vu with the current Obamacare litigation.

In the early days of the individual mandate debate, a common ploy was to label arguments about the individual mandate’s constitutionality as “frivolous.” Then, when courts began to invalidate the mandate, the arguments, in the words of Jack Balkin went from “off the wall” to “on the wall.” Then, supporters of the ACA had to develop sophisticated legal arguments as to why these arguments were wrong. At this point, there was a serious legal debate. But, this effort was augmented by the standard parade of horribles, which I document at some length in my book.  If the Court strikes down the President’s signature piece of legislation of a 5-4 vote in an election year it will delegitimize the Court. If the Court strikes down the mandate, millions will lose their health insurance. The supporters of the law were playing games with people’s lives. And so on.

Let’s review the Halbig litigation, which has followed an eerily similar pattern. For nearly two years, virtually all scholars argued that the argument advanced by Jon Adler and Mike Cannon was “frivolous.” Yet, by my count, 5 out of 6 Judges (including 3 Democratic-appointed Judges) agreed that the government can’t win at Chevron Step 1. 5 out of 6!  Only one judge, Judge Davis, found that this case was open and shut at Chevron step 1.

I should remind you that Judge Davis was on the 4th Circuit panel in Liberty v. Geithner, and was the only judge who reached the commerce clause issue–the other two judges on the panel resolved it at the taxing power. He basically reached the issue, even though he agreed with the taxing power analysis. So much for judicial restraint.

Only by applying the uber-deferential Chevron Step two did 4 out of the 6 judges find that the IRS’s position was reasonable. The government being forced to win by the graces of Chevron Step 2 means this position is not frivolous. This is even less impressive than beating the rational basis test. Now, as Rick Hasen noted, this argument is now “on the wall.”

There is another parallel with Obamacare. I could not find a *single* person who argued in 2009 and 2010 that the Affordable Care Act imposed a tax on those who do not have insurance. No one. One government lawyer I interviewed for Unprecedented assured me this was how the Administration viewed it. But I could not find any contemporaneous evidence to substantiate this. Ditto for the legislative history of the issue in Halbig. As Adler and Cannon note in their WSJ Op-Ed:

If that were Congress’s intent, certainly one should be able to find some statutory language to that effect. Or contemporaneous quotes from the law’s authors explaining that they intended the Affordable Care Act to authorize subsidies in federal exchanges. The president’s supporters have had three years to find such evidence supporting their theory of congressional intent. They have come up empty.

Again, 5 out of 6 Justices agreed on this point. I suppose this is what happens when you ram a 3,000 page law through the process without any meaningful reconciliation or conferences. This was necessary because of Scott Brown’s election, as Megan McCardle recalls. They passed the law. And now, we found out what is in it.

Now that the argument is on the wall, debates are raging between textualism, purposivism, contextualism, and so many other -isms. The canons of construction are firing away at full blast. All this argumentation is evidence that the argument is not, nor has ever been “frivolous.”

And, following the pattern we saw with Obamacare I, the parade of horribles has commenced. For those of you on the ConLaw Prof list-serve, the barbs were charged at a very high level yesterday, with accusations of mean-spiritedness being thrown around vividly. Andy Koppelman, in a post titled “Halbig and hurting the innocent as a political tactic,” asks:

Q. What’s the difference between a Ukrainian rebel with a rocket launcher and a lawyer challenging the Obamacare subsidies?

A. The Ukrainian doesn’t intend to hurt innocent people.

Too soon? Koppelman piles on in a piece in TNR titled “Obamacare Opponents Are Hurting 4.5 Million Workers to Win a Political War.” Beyond the legal merits of the case, people will lose their insurance if the challengers win.

But merits aside, the case raises important questions about the ethics of political warfare. When is it acceptable to deliberately aim to harm huge numbers of people in order to score a symbolic point? The point here is to discredit Obamacare; the casualties are simply a means to that end….

If the argument is ultimately accepted by the Supreme Court, then about 4.5 million low- and middle-income workers in those states who are already receiving assistance from Obamacare will abruptly lose their benefits—not because they did anything wrong, but because this destruction furthers the political war. Their personal disasters are not unintended side effects of the litigation, but the very goal that the challengers are seeking.

…

The opponents of Obamacare have from the beginning found themselves driven by the logic of their position to make arguments that are increasingly morally repulsive. This was on display in the Supreme Court argument in March 2012. The government argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick. Justice Antonin Scalia responded: “Well, don’t obligate yourself to that.”

Echoing that charge is Tim Jost, who in the early days called both the mandate argument, as well as the Halbig frivolous.

Should the plaintiffs ultimately win, millions of Americans will lose their premium assistance and probably their health insurance. The individual health insurance markets may collapse in several states. This is mean-spirited litigation, intended to deny health insurance to those who Congress intended to help. It is to be hoped that in the end the courts will interpret the law as it was meant to be interpreted, and uphold the IRS rule.

Soon enough, the full-court press on Chief Justice Roberts will commence. As I said, deja vu.

Before this week, I was weighing against writing another book on the Affordable Care Act. Now, I am leaning towards continuing my work on “Unraveled,” focusing more broadly on executive power in the age of Obama. Hobby Lobby, Boehner, Halbig, Immigration, Libya, Bergdahl, etc. There’s more than enough important facts to chronicle for the ages. My article, “Congressional Intransigence and Executive Power” provides the basis of my theories.