King v. Burwell has given me the oddest sense of deja vu. I’ve commented to several friends, “We’ve been here before.” Before it even began, I sensed an imminent effort to lobby the Chief Justice. And, shortly after certiorari was granted, this effort began. Since then, there has been an onslaught of blog posts, articles, and even amicus briefs that make the naked argument that the Court–the Chief in particular–should not invalidate the IRS Rule because it would amount to a partisan decision divesting innocent people of their subsidies, and corrupt the Court as an institution. These are separate, and apart, from briefs that make various textual or structural arguments about how to interpret the ACA (including my own), which I have no problem with. Why shouldn’t those on the left make these types of arguments? As I discuss in Unprecedented, they worked the first time around. So, the argument goes, let’s do it again.
Yet, this deja vu cuts both ways. Conservatives that criticize these liberals are invariably attempting to influence the Court in their own right. In 2012, liberals told the Chief Justice to be the “Chief Justice for all of us.” Conservatives replied, in kind, that the Chief Justice should grow a “spine of steel.” Both sides were engaging in the same game. And we know how that turned out.
As before, politicians are starting to get involved in the lobbying effort. The President, who three years ago compared a decision invalidating the individual mandate to “Lochner,” has preemptively called a decision invalidating the IRS rule “bad law.”
“If they rule against us, we’ll have to take a look at what our options are. But I’m not going to anticipate that,” President Obama said Monday in an interview with Reuters. “I’m not going to anticipate bad law.”
Bad law. The President has already delegitimized a decision of the Court, without even reading it. In another interview, he said there is no “plausible legal basis” to invalidate the rule. Whether or not the result is correct, there are hundreds of articles, briefs, and essays making at least a “plausible” cause. It would survive Iqbal. But for now, the effort is to render the opinion void ab initio.
The New York Times reports that the Obama administration claims to have no plan whatsoever if the Court invalidates the IRS Rule. But that isn’t the important revelation. What is significant, is the administration signaled that they were deliberately not implementing a plan
Administration officials insist that any steps they could take to prepare for the potential crisis would be politically unworkable and ineffective, and that pursuing them would wrongly signal to the justices that reasonable solutions exist. The do-nothing strategy is meant to reinforce for the court what White House officials believe: that a loss in the health care case would be unavoidably disastrous for millions of people.
Think about that for a moment. Some administration official is openly signaling to the Times that the White House isn’t even thinking of a Plan B, in the hope that such a “reasonable solution” may assuage the Justices to invalidate for a rule. (For what it’s worth, I don’t believe for a second they don’t have a contingency plan–this makes such posturing even worse).
“Republicans are trying to send a false message to the Supreme Court that they could repair the enormous damage that this case could bring to the health care of Americans when they cannot even address basic funding for the Department of Homeland Security,” he continued. “This plan is vacuous. The result of an adverse Supreme Court ruling would be hugely dangerous.”
Democrats are claiming to have no plan, in order to signal to the Court that they should uphold the Rule. Republicans are claiming to have a plan, in order to signal to the Court they should invalidate the Rule.
Peter Suderman summed up the issue well:
But consensus isn’t really the goal here. Instead, the Republicans are playing a strategy that is the reverse of the one employed by the White House: They want to convince the court that the fallout from a ruling for the challengers would not be too great, because the GOP has a mitigation strategy at the ready.
What this messaging tug-of-war leaves us with, then, is an odd dynamic in which the administration insists it has no contingency plan, even though it (likely) does, and Republicans in Congress insist they have a backup, even though they don’t.
The lobbying, or politicking, of the Supreme Court is unhealthy, and I think poses a true death spiral to our system of justice, far beyond the impact on health insurance premiums. The final paragraph of my afterword in Unprecedented is truer today, than when I wrote it.
Though the administration’s effort to politicize the courts worked in the short term, I fear what this may do to the Supreme Court in the long run. Attempts by the political branches to intimidate the Court are nearly as dangerous as the Court disrespecting its role among the political branches. As Justice Thomas said in February 2011, in response to calls for his recusal, “You all are going to be, unfortunately, the recipients of the fallout from [this politicization of the judiciary]. There’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties.” When that day comes, Thomas implied, those institutions won’t be there. The leak of the chief justice’s decision to change his vote, followed by the battle to sway him back, underscores how precarious this credibility is.
For now, I hope that the constitutional clash from 2009 to 2012 remains unprecedented and is never repeated.
Alas, we now have a template. I fully expect this pattern to repeat after arguments tomorrow. And we are all worse off for it.