Alito cut the legs out of the latest attack on Obamacare — and didn’t even know he did it

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Remember Burwell v. Hobby LobbyHobby Lobby is the single most significant court victory ever achieved by America’s religious right. Before Hobby Lobby, religious conservatives could not wield their faith to undercut the rights of other people. After Hobby Lobby conservative religious objections may be used to narrow the rights of third-parties.

Yet a passage in Justice Samuel Alito’s opinion for the Court in Hobby Lobby could — or at least, should — take on an entirely unexpected significance after Reed O’Connor, a partisan operative turned federal judge, struck down the entire Affordable Care Act on Friday in a case called Texas v. United States.

Judge O’Connor’s opinion is a jurisprudential trainwreck. It misreads the text of the law, draws distinctions that the Supreme Court explicitly rejected, and it feigns ignorance regarding the outcome of a year-long debate where congressional Republicans tried and failed to repeal Obamacare. O’Connor’s opinion is such an embarrassment to the judiciary that even Jonathan Adler, one of the architects of the last partisan lawsuit seeking to undermine Obamacare, called the opinion “strained and implausible.”

But you don’t have to take my or Adler’s word for it. You can also take Justice Alito’s.

O’Connor’s opinion, to the extent that it engages in anything that can be described as legal reasoning, rests largely on statements of fact that Congress wrote into the Affordable Care Act’s text when it enacted the law in 2010. Yet Hobby Lobbyrejected O’Connor’s use of such fact-finding statements. Indeed, the methodology O’Connor used in his opinion is so inconsistent with the methodology Alito used in Hobby Lobby that the two opinions cannot coexist.

To explain why, we must delve pretty deep into the nuances of statutory interpretation, and into the sewers of O’Connor’s legal reasoning. Buckle up. This is about to get wonky.

O’Connor’s Texas opinion argues that, because Congress effectively repealed a single provision of Obamacare in 2017, the entire law must fall.

As originally enacted, the Affordable Care Act requires most people to either carry health insurance or pay higher income taxes — a provision widely known as the law’s “individual mandate.” In the 2017 Trump tax law, Congress set the cost of these taxes at zero, effectively repealing the individual mandate. According to O’Connor, this zeroed out mandate is unconstitutional.

That’s an academically interesting conclusion, but it matters very little in practical terms. Who cares if a mandate that literally does nothing is unconstitutional?

Or, at least, a decision striking down the mandate should mean nothing at all. O’Connor, however, concludes that, because a do-nothing provision of the law is unconstitutional, every other provision of the law must go down as well.

To reach his conclusion that the entire law must fall, O’Connor points to language in the Affordable Care Act’s text which states that the individual mandate “is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market.” Congress, O’Connor reasons, labeled the individual mandate “essential.” Therefore, if the mandate is struck down — even a zeroed out mandate — O’Connor claims that the entire law must cease to exist.

After all, if Congress didn’t want this draconian result, it wouldn’t have labeled the mandate “essential.”

There are so many problems with O’Connor’s reasoning that it is hard to count them all. For one thing, it wasn’t the 2017 Congress that repealed the mandate which claimed that the mandate is essential, that claim was made by the 2010 Congress that wrote the original law. Later congresses are allowed to undo the work of earlier congresses, and they are allowed to reach different conclusionsabout which provisions are essential to a law’s broader structure.

Additionally, the provision labeling the mandate as “essential” does not, as O’Connor suggests, say that it is essential to the entire statute. It says that it is essential to “Federal regulation of the health insurance market” — that is, the provisions of the law ensuring that insurers will not discriminate against people with preexisting conditions. Even if you accept O’Connor’s premise that the 2017 Congress is bound by the 2010 Congress’ findings of fact, O’Connor is still wrong to strike down the entire law.

But O’Connor’s opinion suffers from a third problem: It is entirely at odds with Hobby Lobby.

Enter Justice Alito

Hobby Lobby involved a federal law known as the Religious Freedom Restoration Act (“RFRA”) which, as the name of this law suggests, sought to restore a legal regime that the Supreme Court abandoned in its 1990 decision in Employment Division v. Smith. Prior to Smith, the Supreme Court gave very robust protection to religious objectors — so long as that protection didn’t undermine the rights of third parties. Smith made it much harder for religious objectors to win their cases.

Like the Affordable Care Act, RFRA contains explicit findings of fact which lay out what Congress hoped to accomplish when it wrote this law. The purpose of RFRA, according to these findings, is “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).”

This language matters because the “compelling interest test” set forth in Sherbertand Yoder incorporated the rule that a people of faith cannot wield their religious objections to limit other people’s rights. And that created a problem for Justice Alito. Expanding the rights of religious conservatives at the expense of, well, anyone else, is one of Alito’s pet projects. But RFRA’s statement of its own purpose undermined Alito’s goal.

So Alito found an excuse to ignore that statement of purpose.

Alito’s excuse was a 2000 amendment to RFRA, which Alito described as “an obvious effort to effect a complete separation from First Amendment case law” as laid out by cases like Sherbert and Yoder. There are many reasons to doubt Alito’s interpretation of this 2000 amendment, but the correctness of Alito’s Hobby Lobby decision is irrelevant to the question of whether O’Connor’s Texas opinion is correct. As a lower court judge, O’Connor is required to follow Supreme Court decisions, including Hobby Lobby.

What makes Alito’s use of this 2000 amendment significant is that Alito concluded that this amendment effected “a complete separation from First Amendment case law” despite the fact that the amendment did not remove the language in RFRA stating that the law should be read to restore the Court’s First Amendment decisions in Sherbert and YoderHobby Lobby, in other words, established that courts may ignore provisions of a law which state a statute’s purpose when they are interpreting an amendment to that statute.

So Hobby Lobby and Texas are, when viewed through the lens of how courts should treat congressional findings of fact, identical cases. In both cases, a court was called upon to interpret an amended statute. In both cases, that amended statute contained findings of fact that were left over from a previous, unamended version of that statute. In Hobby Lobby, the Supreme Court ignored those findings. O’Connor, as a lower court judge, is bound to follow the same rule in Texas.

Law as politics

So does all of this mean that Alito will vote to reverse O’Connor’s erroneous decision? Don’t bet on it. Alito is as reliably partisan as O’Connor. And he’s already shown that he’s willing to embrace dubious legal reasoning if that reasoning undermines the Affordable Care Act.

But the disparity between Hobby Lobby and Texas provides a window into how judges actually behave in political charged cases. On the surface, the law is tangle of complex doctrines and rules governing how legal texts should be interpreted. Many of these rules are opaque to lay people and even obscure to many lawyers. It’s possible to graduate from one of the nation’s top law schools without ever even thinking about questions like how courts should weigh congressional fact-finding when interpreting a statute.

Which is why these doctrines are so easily manipulated. A judge like Alito can say that such findings are irrelevant in one case, then turn around and treat them as crucial in another case. And the few lawyers who notice the anomaly will struggle to explain it to an electorate that, for the most part, isn’t going to spend its time learning the nuances of statutory interpretation.

But that doesn’t mean that the rank dishonesty of O’Connor’s opinion won’t matter. While Alito is likely to close his eyes and point to the anti-Obamacare side every time a case like Texas reaches his Court, Chief Justice John Roberts is more capable of embarrassment. And he was pretty damn clear the last time his Court heard a political attack on the Affordable Care Act that he is sick of these cases.

Assuming that the Court’s membership does not change before Texas reaches Roberts, O’Connor’s attack on Obamacare is unlikely to succeed.

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Reposted from ThinkProgress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

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