[Senators] will be on solid ground to question whether Gorsuch’s professed “textualism” means fidelity to the whole text of a law, or using a-contextual readings, as Sen. Patrick Leahy observed in a 2008 hearing, “turning these laws on their heads and making them protections for big business rather than for ordinary citizens.”
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It’s time for reformers to focus not just on the corporate scammers, but on the court decisions that so greatly decreased the risks of scamming.
In short, not only is Texas’s challenge to DAPA an overtly partisan effort to upend a decades-old bipartisan consensus on immigration policy, but its lawyers’ arguments flout the legal framework codifying that consensus. Given recent decisions by Kennedy and Roberts endorsing that framework and opposing partisan misuse of the courts, good reason exists to expect the Supreme Court to reject this lawsuit and relegate the immigration wars to the political process, where they belong.
Roberts has repeatedly decried perceptions that polarization in the political branches will “spill over” and undermine the court’s stature. As recently as February 4, he has insisted, “We don’t work as Republicans or Democrats,” and that “people don’t have a really good understanding of what the Court does.” But now Republicans have drawn his Court into the middle of the biggest political fight of the decade.
If the Court takes, as its lodestar for evaluating DAPA, the plan manifest over decades of legislating and administering the immigration laws, it is unlikely that votes will be found to invalidate it—in the (also unlikely) event that a majority will grant standing and reach the merits of Texas’ case.
This blow-out record has emboldened business advocates to shoot for the moon, throwing precedent and caution aside. In recent years, and specifically in the cases the Court is now mulling, the Chamber and its allies have worked toward carving out what amounts to a law-free zone, effectively immunizing corporations from private lawsuits when they violate virtually any law, state or federal, enacted to protect consumers, employees, minorities, women, retirees, small investors, or small business suppliers.
Legal experts, including ACA opponents like Case Western Reserve law professor Jonathan Adler, have argued that the new and questionable ground broken by Collyer’s decision merits “immediate” appellate review—which the Justice Department has already announced it will seek. If more evidence were needed, Boehner himself provided the clincher the day after the decision. Last Thursday, Politico reported that the speaker “might sue President Barack Obama again,” this time to challenge alleged non-compliance with reporting provisions of the legislation prescribing congressional review of the Iran nuclear agreement.
Chief Justice Roberts has used his power to entrench the ACA—against demands from the left for a command-and-control version of the ACA individual mandate, and against conservatives' strategy of killing the ACA in court. This, Roberts concluded, is “the type of calamitous result that Congress plainly meant to avoid”—and which, the chief justice made crystal clear, he will be loath to permit, in this case and any other challenge the law’s opponents might cook up.
While it is possible that King v. Burwell will realize its fans’ dream of “driving a stake through the heart of Obamacare,” the better bet is that conservative ideology will trump that political goal, and on terms with which progressives can live.
Opponents of the Affordable Care Act have been caught off guard by the possibility that the challenge in King v. Burwell actually violates principles of constitutional federalism. The federalism argument has been made in two important Supreme Court amicus curiae briefs, one submitted on behalf of 22 states and the District of Columbia, and another on behalf of four law professors – Abbe Gluck, Gillian Metzger, Thomas Merrill, and Nicholas Bagley.