On my book tour, I frequently am asked the same question: will the Court take the opportunity to strike down the mandate in Halbig? My answer usually goes something like this. Chief Justice Roberts could have invalidated the entirety of the Affordable Care Act in 2012, before anyone relied on it. He didn’t. Why would he do so in 2015, when millions are relying on it. (Though it is far from clear whether there are more winners than losers under the law).

Kevin Walsh has an astute post that challenges some of my own thinking. First, he notes that unlike NFIB, which involved serious doctrinal developments, Halbig is a fairly straightforward application of statutory interpretation, that will not change any constitutional doctrine (other than the fact that the Administration can’t arbitrarily rewrite the law).

First, a ruling for the individual mandate challengers required the development of constitutional doctrine in a way that a ruling for the ACA subsidies challengers would not. The political branches have long been on fair notice that text of enacted law controls, whereas they may have been lulled into complacency by the Court’s own latitudinarian constructions of the scope of congressional authority under Article I over time. Second, there is no statutory inseverability issue in the ACA subsidies challenge. The decision in NFIB v. Sebelius was made under the shadow of potential statutory inseverability, such that a newly formulated limitation on congressional power could be used to take down the entire ACA in one judicial ruling. While the practical effects of invalidating the IRS regulation in the ACA subsidies could be severe, the legal ruling would itself be much narrower by comparison

Kevin’s latter rationale, focusing on the rule of law, is much more persuasive in my mind.

Nor can one discount the possibility that, over time, Chief Justice Roberts has come to view President Obama’s commitment the rule of law in a manner similar to how Chief Justice Marshall understood President Jefferson’s commitment to the same.

This is exactly right.

Since 2012, a lot has changed.  The President has unilaterally rewritten the law nearly 40 times (by my rough count). He sees no bounds to his ability to change the law, and has even taunted Congress to “sue me.” So here we are, in Court. To the extent that these issues present close issues, the government should not receive its normal presumption of constitutionality. To the contrary, the reckless and lawless manner with which this law has been drafted, enacted, and implemented, should deprive the government of this benefit of the doubt. Specifically, with respect to Halbig, the United States notified the D.C. Circuit in a letter brief that they would effectively not comply with an invalidation of the IRS rule.While the Chief may have thought a saving construction was warranted in NFIB, a similar favor may no longer be warranted.

For some time, I have toyed with the idea of filing a brief in one of the Obamacare cases focusing on the rule of law. This may present the right opportunity.