The Friday night judicial ruling that, if it stands, will cost millions of people their health insurance and inflict untold physical, emotional, and financial harm on some of the most vulnerable people in the country came from Texas. But the legal theory on which the ruling was based came out of Madison, Wisconsin, where a few years back Gov. Scott Walker and the state’s GOP legislature created a new Office of Solicitor General to pursue this kind of high-stakes litigation.
A bright, funny young man named Misha Tseytlin was hired to do the job.
When I met him earlier this year during a week-long visit to the University of Wisconsin, Tseytlin explained to me that he had no particular connection to Wisconsin when he took the position in 2015. He’d just been working as an attorney in the West Virginia Attorney General’s office (another state to which he had no personal connection) in the general field of suing the Obama administration and he thought the Wisconsin gig would be a fun opportunity to expand his horizons in this regard. He cooked up this lawsuit, persuaded his bosses in state government to sign on, and eventually got 20 state governments to pursue his argument.
Friday night he scored his triumph — his kooky legal theory is the law of the land, according to at least one federal judge.
Other judges may disagree, and as best I can tell, experts in the legal community are deeply skeptical that this challenge will ultimately prevail, arguing that it reflects a fringy legal perspective. I’m not a lawyer myself — and more importantly, I’m not a psychic — so I don’t know what Supreme Court Chief Justice John Roberts wants to do with this issue.
But what strikes me about the case is how utterly mainstream Tseytlin’s theory became in GOP circles very quickly, and how brazenly undemocratic Republicans have been in pursuit of their goal of depriving people of their health insurance.
The GOP legal theory: Congress accidentally repealed the ACA
The Affordable Care Act was legitimized in the American political system three separate times. First, it was passed by two houses of Congress and signed into law by Barack Obama. Second, the Supreme Court ruled that, contrary to conservative legal theories, the individual mandate was a legitimate use of Congress’s authority to tax. Third and most important, when Congress considered Affordable Care Act repeal in 2017, they ultimately wouldn’t go for it.
Crucially, the kind of massive rollback of Medicaid that Speaker of the House Paul Ryan said he’d been “dreaming of” since he was in college “drinking out of kegs” was a nonstarter in the Senate, where many Republicans represented states that had benefitted from Medicaid expansion. So they ended up instead putting together a narrower “skinny” repeal bill that came close to passing but ultimately failed due to three GOP defections.
Then, months later, with repeal having fallen by the wayside, Republicans passed a tax bill whose main purpose was to cut rich people’s taxes, but which also reduced the mandate penalty to $0. Presumably, if Republicans had wanted to vote for a bill that also repealed the ACA’s Medicaid expansion, rescinded its exchange subsidies, and undid its suite of regulatory changes, they would have written a bill like that. But they considered a bunch of bills that would have done some of those things back in 2017, and the Senate rejected them. What they did instead was the tax bill.
Tseytlin’s theory is that since the mandate penalty is now $0, it is no longer a tax. But since the mandate is in some sense still on the books, it now exists as an unconstitutional regulation. And since the bill has no severability clause, the existence of this one unconstitutional provision — a regulatory mandate with no penalty or enforcement mechanism — the whole thing is unconstitutional.
In effect, he argues, Congress — having considered repeal and rejected it — then repealed the whole bill a few months later. By accident. Whoops!
Then Republicans started lying about it
The idea of striking down a law in this way is almost comically undemocratic.
But the accountable, elected arms of the American political system do have easy ways to push back. For starters, the state attorneys-general who were pushing for this unpopular repeal scheme had to face the voters.
Josh Hawley, the attorney general of Missouri, for example, was in the midst of trying to get himself elected to the US Senate. His opponent, Claire McCaskill, quite naturally slammed him for his legal efforts to strip Missourians of key ACA regulatory protections, most of all the rules barring insurance companies from discriminating against patients with preexisting conditions. Hawley, however, cooked up an easy retort to this charge by running ads that lied about his position. He won.
Indeed, Republicans all up and down the country started misleading on this subject.
Which, after all, they had to do. Because even if for some narrow reason you buy Tseytlin’s legal argument, the “problem” had a super-easy legislative fix this whole time. Simply make the mandate formally repealed and/or make the clause severable from the rest of the legislation and the whole strategy collapses. No accidental repeal after all!
But Republicans never acted on any such notion because they were hoping courts would throw the whole law out. And Republicans dealt with the unpopularity of that position by just lying to the voters about what they were doing.
While those lies weren’t enough to save the GOP House majority, Hawley did successfully lie his way into a Senate seat — as did Rick Scott and several other GOP challengers. And then in Wisconsin things went full circle.
Shady games in Wisconsin
Scott Walker, the Wisconsin Republican governor who'd set this whole thing in motion, campaigned in 2018 by saying (falsely) that he supported preexisting conditions protections.
Unlike Hawley, he lost. So did other statewide GOP officials, including the state’s attorney general. Democratic candidates for Wisconsin State Assembly won a majority of the votes. But thanks to gerrymandering, the GOP still held a majority of the seats. In his last act as governor, Walker signed a series of lame-duck bills reducing the power of newly elected Democratic Party officials statewide.
One of those bills makes it illegal for the new governor and new attorney general to withdraw the state from this ACA lawsuit. Hawley tricked people into believing he would defend preexisting conditions rules, and, starting next month, will use his authority as a US senator to do the reverse. Walker failed to trick people, lost his race, and then used his lame duck powers to do the reverse of what he said.
The striking thing about all of this, however, is that it’s not just one oddball judge in Texas — it’s 20 Republican attorneys general. And it’s not just one GOP elected official misleading voters about their stance on preexisting conditions, it’s dozens. And it’s not just one losing gubernatorial candidate pulling an undemocratic fast one during the lame duck session — it’s the near-unanimous decision of two different state legislative caucuses.
This is, evidently, how the overlapping networks of donors, operatives, activists, and elected officials who make up the GOP think the country should be run.
The threat to democracy isn't “populism”
All of which is to say that the real Trump-era threat to democracy is the opposite of populism.
Trump has many of the mannerisms and much of the style of a plebiscitary dictator who wields demagogic rhetoric to turn the crowd against liberal institutions. But in a real-world sense, Trump and his political allies are unpopular, and people keep voting against them.
They nevertheless wield vast political power, however, because of institutions. The Electoral College, gerrymandering, and the maldistribution of Senate seats allow the GOP to enjoy political power that’s disproportionate to their voting support.
A tight-knit group of Federalist Society lawyers and judges allow conservatives to advance policy ideas that lack public support through the judiciary. When in doubt, they fib and hope Fox News will help them muddy the waters.
The case will, of course, make its way up to higher courts, where hopefully cooler, more humane heads will prevail. But whether they do depends not just on the law but on the political context.
The rhetoric and practice of actual majoritarian populism — rather than simply assuming Chief Justice Roberts will do the right thing — is critical in moments like this. Judicial conservatives will be restrained in their activism if and only if they believe that defying the will of the people on such consequential matters will lead to their delegitimization.
It’s a fear they ought to have. But one which will only develop if progressive leaders are able to move beyond excessive fear of populism and learn to speak the language of popular majoritarianism and democratic self-rule.