July 17, 2019 | News | No Comments
One striking aspect of the oral arguments, last week, in Texas v. United States, a case that threatens the Affordable Care Act, was the suggestion, from two of the three judges on a Fifth Circuit appeals panel, that what politicians say to or promise the public needn’t be taken seriously—indeed, that it hardly matters if they lie. The case, which I wrote about in this week’s magazine, was brought by states led by Republicans, and in effect argues that, when Congress passed President Trump’s 2017 tax bill, it was, unbeknownst to the public, actually invalidating the entire A.C.A. One roadblock to this argument is that this is not what Congress said it was doing. Instead, the law simply set the penalty for not securing health insurance—the “individual mandate”—to zero, and nothing more. But why should anyone believe them?
“How do we know that some members didn’t say, ‘Aha! This is the silver bullet that’s going to undo the A.C.A.’ or ‘Obamacare,’ if you prefer?” Judge Jennifer Elrod asked Samuel Siegel, an attorney defending the law on behalf of a group of twenty-one states, most of them blue. “ ‘So we’re going to vote for this just because we know it’s going to bring it to a halt, because we understand the tax issue’?” (The “tax issue” is the theory that, because Chief Justice John Roberts once argued that defining the financial penalty as a tax made that penalty constitutional, its absence was fatal to the whole law—an argument that lawyers might want to keep secret not out of tactical slyness but out of embarrassment, because it doesn’t make much sense.)
“That would be imputing to Congress the intent to create an unconstitutional law,” Siegel said, though it’s actually more convoluted than that. Indeed, the hypothesis is that members of Congress passed such a law just to be busted—to sabotage a law that they had failed to change legislatively. (At another point, Elrod asked whether Texas, one of the lead plaintiffs, might have been waiting to say, “ ‘Hah—caughtchya! You just did something unconstitutional!’ ”) When the penalty was repealed, Siegel noted, several legislators “specifically came forward and said, ‘We are not repealing the preëxisting conditions, we’re not repealing the subsidies’ ”—elements of the A.C.A. that are widely popular. If they did have a “silver bullet” plan, “that would mean they were misleading the American public and their constituents.” Senator Orrin Hatch, then the Republican chairman of the Finance Committee, was among those offering such reassurances in 2017.
“I’m not a fan of using quotes from elected officials, who say a lot of things for a lot of reasons,” Judge Kurt Engelhardt said. Engelhardt, whom Trump named to the court, came across as a silver-bullet kind of guy. An issue in the case is “severability”—how much of a large, multi-part law courts should invalidate if one element of it is found unconstitutional. The basic standard is that courts should be cautious and keep what they can. Engelhardt asked why it wouldn’t be easier to just throw out the whole thing and let Congress start over. “I mean, can’t they put together a sort of cafeteria-style package with all of these individual features that are so attractive . . . They could vote on this tomorrow!” he said to Douglas Letter, a lawyer for the House of Representatives, who was also defending the bill. “Couldn’t they put them together and vote on them like that?” Engelhardt asked, snapping his fingers.
“And obviously the President would sign that, right? No, obviously not,” Letter replied, provoking laughter.
In the health-care case, the public reassurances from legislators simply reinforce the most obvious reading of the law, namely that Congress had decided that the mandate could go and the rest of the law could, functionally, survive without it. But an interesting phenomenon, in the jurisprudence of the Trump years, involves attempts by the Administration’s lawyers to get the courts to ignore a disjunction between what the President says in public and the legal justifications that his Administration offers for his actions. In the litigation over the various iterations of Trump’s travel ban, for example, lawyers for the Administration argued that judges should ignore what Trump said on the campaign trail about instituting “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on,” as well as his tweets disparaging Muslims. Instead, the judges should believe the lawyers’ claims that the ban was not targeted at any religious group and was not at all discriminatory: the ban was just a reflection of concerns about national security. It took a few tries, major revisions, and the inclusion of North Korea on a short list of proscribed countries for the Administration to come up with a limited ban that the Supreme Court, by a 5–4 vote, would accept.
Similarly, the Administration, in its attempts to add a citizenship question to the census, first claimed that the aim was to protect the voting rights of minorities—a rationale laughably at odds with the President’s warnings of an immigrant invasion. The question of how courts should interpret the meaning of legislative and executive actions has always been complicated; Trump’s tendency both to dissemble and to incite, both to deny his motives and to bray about them, all at high volume, can make it trickier still. In the census case, though, the President lost: the Supreme Court found that his Administration had not offered a good-faith explanation for adding the question. The ruling meant, practically, that the question would be omitted; the task of having to justify its actions in an honest manner was apparently too daunting for the Administration to accomplish in the time left before the forms had to be printed. Chief Justice Roberts, writing for the majority, wrote (citing an earlier decision), “We are ‘not required to exhibit a naiveté from which ordinary citizens are free.’ ” The Court wanted the Trump Administration to tell the truth about what it was doing. Or, at least, the Court didn’t want the President to force it to pretend to believe his more obvious lies.