From the very beginning, I was among those that said the claims inCalifornia v. Texas were categorically different from those in prior Affordable Care Act cases and would ultimately fail. (My prior posts on this litigation are indexed here.) The question was never whether Texas would lose, but how and when. I further said repeatedly that the claims would be lucky to get two votes on the Supreme Court.
What distinguished the claims inCalifornia v. Texas from the claims inNFIB v. Sebelius andKing v. Burwell was not merely relative weakness of the arguments, but also the lack of any grounding in conservative jurisprudence. The arguments underlying aggressive legal challenges often seem weak at first. If they are to go from "off the wall" to "on the wall" they need to be grounded in sound legal principles. Planted in the fertile soil of an underlying jurisprudence, even apparently outlandish legal arguments may blossom. Legal arguments motivated by nothing more than policy aims, on the other hand, are likely to wither.
The claims in NFIBwere grounded in longstanding concern about maintaining the limits on enumerated powers. The individual mandate and Medicaid expansion both represented unprecedented assertions of federal power, and the arguments against each were directly tied to principled arguments about the need for judicially enforceable limits on federal power. (Some of us here at the VC were involved in developing those arguments, as documented in our book, A Conspiracy Against Obamacare.) Thus the arguments inNFIBwere not merely about the ACA. They were about vindicating a constitutional principle that has long been embraced by conservative and libertarian legal scholars and jurists.
Just as the arguments inNFIB were grounded in a core conservative constitutional principle, the arguments inKing v. Burwell were grounded in a core conservative interpretive principle: that the meaning of a statute is controlled by the statute's text. The idea that words in a statute mean what they mean was not invented for this case. The argument that statutory interpretation must be grounded in and anchored by the statutory text have been made for decades. Moreover, the central arguments in King were developed and advanced before there was even any prospect of litigation. (In my case, I first spoke and published on the meaning of the relevant provisions of the ACA before NFIB had been decided and when it still looked as if every state would create their own exchange.) The arguments were no doubt supported by many who saw them as a means to attack the ACA, but the arguments themselves involved straightforward textualist analysis of the relevant provisions in their broader statutory context. (The Court'sKing opinion, on the other hand, not so much.)
California v. Texas, in contrast toNFIBandKing, was not moored to any underlying jurisprudential principle. IfNFIB was about limited and enumerated powers andKing was about text, California v. Texaswas about what exactly? Hamstringing the legislature's ability to use reconciliation? Turning statutory challenges into games of Jenga? In the end, the case was really about nothing more than slaying the ACA by any means necessary. This explains why it prompted significant opposition on the Right found greater support from state attorneys general than from conservative and libertarian legal scholars (as illustrated by the line-up of amicus briefs). Hating on the ACA may win a Republican primary or fill fundraising coffers, but it's not enough to win over a majority of justices.
Not only were the core legal arguments in California v. Texas unmoored from conservative jurisprudence, key elements of the case actually challenged longstanding conservative principle. As I've explained in prior posts, for the plaintiffs to prevail, the Court would have had to abandon longstanding constraints on Article III standing, adopt selective and result-oriented purposivist analyses of legislative intent, and invent a new approach to severability at odds with any notion of remedial restraint.
All of this meant that the headwinds against the arguments in Calfornia v. Texas were simply too strong to be overcome. To some of us, that this would be so was obvious from the start.
The rest is here:
Why the Texas ACA Suit Was Always Destined to Fail (Even on a 6-3 Court) - Reason
- Opinion | 100 Days of Javier Milei - The New York Times - March 27th, 2024 [March 27th, 2024]
- Robert F. Kennedy Jr. flirts with the Libertarian nomination - POLITICO - March 27th, 2024 [March 27th, 2024]
- RFK Jr. in talks to run on the Libertarian Party ticket to ease ballot challenges - Washington Examiner - March 27th, 2024 [March 27th, 2024]
- One Hundred Days of Libertarian Populism in Argentina - The American Conservative - March 27th, 2024 [March 27th, 2024]
- Bylaws and Rules Committee and Platform Committee Survey (Part One) - Libertarian Party - March 27th, 2024 [March 27th, 2024]
- When Will the Libertarian Party Have Its Moment? - Econlib - March 27th, 2024 [March 27th, 2024]
- RFK Jr. in talks to run on the Libertarian Party ticket to ease ballot challenges - Colorado Springs Gazette - March 27th, 2024 [March 27th, 2024]
- RFK Jr. aligned with the Libertarian Party on capitalism stance - NewsNation Now - March 6th, 2024 [March 6th, 2024]
- RFK Jr. fuels talk of switching to the Libertarian Party - Fox News - March 6th, 2024 [March 6th, 2024]
- RFK JR still flirting with Libertarian Party run? Third parties seek ballot access - The Hill - March 6th, 2024 [March 6th, 2024]
- RFK Jr. sparks speculation of switch to Libertarian Party for greater ballot access - Washington Examiner - March 6th, 2024 [March 6th, 2024]
- Nate Silver: Libertarians Are the Real Liberals - Reason - March 6th, 2024 [March 6th, 2024]
- Even immigration is no free lunch - Washington Examiner - March 6th, 2024 [March 6th, 2024]
- Interview with NC Libertarian governor candidate Shannon Bray - Fox Carolina - March 6th, 2024 [March 6th, 2024]
- Libertarians Call for 'Food Freedom' in Response to Amos Miller Farm Search - Lancaster Farming - March 6th, 2024 [March 6th, 2024]
- Where Does the Term Libertarian Come From Anyway? | Jeffrey A. Tucker - Foundation for Economic Education - March 6th, 2024 [March 6th, 2024]
- Here are the 10 Libertarian candidates in the 2024 NC Presidential Primary - Fox Carolina - March 6th, 2024 [March 6th, 2024]
- 2024 Presidential Primary Information: Ballots Have Other Races, See Where to Vote - Watertown News - March 6th, 2024 [March 6th, 2024]
- Argentina's libertarian President Milei warns parliament that he will govern 'with or without' political support - Le Monde - March 6th, 2024 [March 6th, 2024]
- Madison County Introduces First-Ever Libertarian Primary on Super Tuesday - BNN Breaking - March 6th, 2024 [March 6th, 2024]
- Musician and libertarian writer who works for 'The Blaze' arrested on Jan. 6 charges - NBC News - March 6th, 2024 [March 6th, 2024]
- RFK Jr. says he didn't read Alabama IVF ruling, won't say when life begins - The Washington Post - February 26th, 2024 [February 26th, 2024]
- Argentina touts libertarian social justice to Blinken before Javier Milei visits CPAC - Washington Examiner - February 26th, 2024 [February 26th, 2024]
- Robert F. Kennedy Jr.'s Delicate Dance: Navigating Reproductive Rights and Libertarian Principles - BNN Breaking - February 26th, 2024 [February 26th, 2024]
- Javier Milei and the Spanish Tradition of Liberty - Quillette - February 26th, 2024 [February 26th, 2024]
- The Weekly Wrap: Poilievre proves hes more than a live-and-let-live libertarian - The Hub - February 26th, 2024 [February 26th, 2024]
- Why have authoritarianism and libertarianism merged? A political psychologist on 'the vulnerability of the modern self' - The Conversation - January 5th, 2024 [January 5th, 2024]
- Argentina's Javier Milei what are his plans and will they work? - MoneyWeek - January 5th, 2024 [January 5th, 2024]
- Tucker Carlson Issues Scathing Indictment of 'Libertarian Economics' - Reason - December 20th, 2023 [December 20th, 2023]
- Tucker Carlson: "Libertarian Economics Was A Scam Perpetrated By The Beneficiaries Of The Economic System" - RealClearPolitics - December 20th, 2023 [December 20th, 2023]
- A Legacy of Resistance to Unjust Taxation - Libertarian Party - December 20th, 2023 [December 20th, 2023]
- The Croatian Invasion of the Micronation of Liberland - Reason - October 9th, 2023 [October 9th, 2023]
- As RFK Jr. Readies an Announcement Monday, Speculation Is ... - The New York Sun - October 9th, 2023 [October 9th, 2023]
- The libertarian think tank that helped build the 'No' case - The Saturday Paper - October 9th, 2023 [October 9th, 2023]
- Fox Chapel Area voters will choose among two candidates for District 3 school board seat - Yahoo News - October 9th, 2023 [October 9th, 2023]
- Far-right party may hold keys to next Polish government, sets tone in talks with Ukraine - Yahoo News - October 9th, 2023 [October 9th, 2023]
- Aella: Is Porn Too Pervasive? - Reason - October 9th, 2023 [October 9th, 2023]
- Massie: McCarthy Speakership Showdown a 'Referendum' on ... - Reason - October 9th, 2023 [October 9th, 2023]
- ESPN's Pablo Torre explains how Harvard classmate Vivek Ramaswamy was 'That Guy' in school - Yahoo News - October 9th, 2023 [October 9th, 2023]
- DeFi has not followed through on its privacy promises yet - Blockworks - October 9th, 2023 [October 9th, 2023]
- At 50, 'The Machinery of Freedom' Remains an Anarcho-Capitalist ... - Reason - October 9th, 2023 [October 9th, 2023]
- Building the World's First Private Libertarian City - Reason - July 13th, 2023 [July 13th, 2023]
- Libertarian candidates say they were not asked for money to run - Buenos Aires Herald - July 13th, 2023 [July 13th, 2023]
- David Schmidtz and My Dad on Asking the Right Questions - Econlib - July 13th, 2023 [July 13th, 2023]
- Indiana governor's race grows more crowded with addition of ... - The Statehouse File - July 13th, 2023 [July 13th, 2023]
- Revealed: The EU lobbying of the so-called 'Consumer Choice Center' - EUobserver - July 13th, 2023 [July 13th, 2023]
- Why do voters have to pick a Republican or a Democrat in the US? - kinyradio.com - July 13th, 2023 [July 13th, 2023]
- Review: Choose Your Own Adventure in 'American Futures' Book - Reason - July 13th, 2023 [July 13th, 2023]
- Twitter users slam Kamala Harris for airplane bathroom demand amid the ongoing border crisis: 'Really?' - Yahoo News - July 13th, 2023 [July 13th, 2023]
- Fundraisers revel in gutted N.J. pay-to-play law - POLITICO - July 13th, 2023 [July 13th, 2023]
- Utah Gov. Spencer Cox wants to spare kids from their phones - Salt Lake Tribune - July 13th, 2023 [July 13th, 2023]
- Kari Lake in Tucson: "I'm actually eyeing the Senate race" - KGUN 9 Tucson News - July 13th, 2023 [July 13th, 2023]
- Q&A with Gary Swing | Veteran minor party candidate advocates for ... - coloradopolitics.com - July 13th, 2023 [July 13th, 2023]
- Jonah Goldberg: A NeverTrumper's Take on the 2024 Election - Reason - July 13th, 2023 [July 13th, 2023]
- Gov. Lombardo one of few republicans to sign abortion protections ... - KTNV 13 Action News Las Vegas - June 2nd, 2023 [June 2nd, 2023]
- Review: 'Land and Liberty' Charts Henry George's Influence - Reason - June 2nd, 2023 [June 2nd, 2023]
- Polish ref cleared of wrongdoing, will take charge of Champions ... - TVP World - June 2nd, 2023 [June 2nd, 2023]
- The Taliban 20's McCarthy Red Line - Puck - June 2nd, 2023 [June 2nd, 2023]
- Morris: Property: Imagine it anew - Greenfield Daily Reporter - June 2nd, 2023 [June 2nd, 2023]
- Weekend Reading on Women's Representation: Stereotypes Can ... - Ms. Magazine - June 2nd, 2023 [June 2nd, 2023]
- Fox Business Shuts Down Kennedy, Will Replace With Kudlow Reruns - Yahoo Entertainment - June 2nd, 2023 [June 2nd, 2023]
- The 11th commandment | News | vcreporter.com - Ventura County Reporter - June 2nd, 2023 [June 2nd, 2023]
- The Long Afterlife of Libertarianism - The New Yorker - May 31st, 2023 [May 31st, 2023]
- Can McCarthy Pass the Debt Deal and Keep His Job? - The New York Times - May 31st, 2023 [May 31st, 2023]
- McCarthy-Biden Debt Limit Deal Clears First Hurdle in Key House ... - The New York Sun - May 31st, 2023 [May 31st, 2023]
- Libertarian Party of Wisconsin: Libertarians to voters: Let's go ... - WisPolitics.com - April 25th, 2023 [April 25th, 2023]
- How the pandemic challenged libertarianism | Canada's National ... - Canada's National Observer - April 25th, 2023 [April 25th, 2023]
- Colorado falls to 43rd in national highway ranking - The Durango Herald - April 25th, 2023 [April 25th, 2023]
- Are We Stuck In a Plutocratic Formal Organization? An Analysis of ... - Trincoll.edu - April 25th, 2023 [April 25th, 2023]
- Why Is Tucker Carlson Leaving Fox News? - Reason - April 25th, 2023 [April 25th, 2023]
- Despite SCOTUS Ruling Limiting Its Authority, EPA Tries To ... - Reason - April 25th, 2023 [April 25th, 2023]
- Biden's "freedom" pitch and the coming political realignment - The.Ink - April 25th, 2023 [April 25th, 2023]
- Informal dollar reaches AR$497, Fernndez and Massa blame ... - Buenos Aires Herald - April 25th, 2023 [April 25th, 2023]
- Crack-Up Capitalism by Quinn Slobodian review the economic anarchy of Liz Trusss dreams - The Guardian - April 25th, 2023 [April 25th, 2023]
- 2024 Libertarian Presidential Candidates - Who's Running in 2024? - March 2nd, 2023 [March 2nd, 2023]
- 5 things the Libertarian Party stands for | The Hill - February 18th, 2023 [February 18th, 2023]
- Most Libertarian States 2022 - worldpopulationreview.com - December 25th, 2022 [December 25th, 2022]
- Gun Ownership | Libertarian Party - December 25th, 2022 [December 25th, 2022]
- Libertarian Party | History, Beliefs, & Facts | Britannica - December 18th, 2022 [December 18th, 2022]
- The Education of a Libertarian | Cato Unbound - December 18th, 2022 [December 18th, 2022]