Rise of the Know-Nothing Judge

The Fifth Circuit may be poised to accept a ridiculous argument against the Affordable Care Act.

A person walks by a health-care insurance office in Hialeah, Florida.
Alan Diaz / AP

If you’ve heard anything about the Texas lawsuit seeking to blow up the Affordable Care Act, you’ve heard that it involves yet another constitutional challenge to the individual mandate. That’s true—but it’s also profoundly misleading.

The parties in Texas v. United States don’t actually disagree about what the Constitution means. What they’re fighting about, instead, is what Congress meant to do, in late 2017, when it wiped out the tax penalty for going without coverage. At the time, President Donald Trump crowed, “The very unfair and unpopular Individual Mandate has been terminated as part of our Tax Cut Bill.” Congressional Republicans said the same.

In the lawsuit, however, the Trump administration is singing a different tune. Together with a group of red states, it now claims that Congress didn’t really end the mandate when it removed the penalty. Instead, it says that Congress kept the mandate and made it even more coercive—and thus unconstitutional. Trump & Co. would also have you believe that if the (now zero-dollar) mandate is unconstitutional, so is the entire Affordable Care Act.

Remarkably, the courts so far have bought this ludicrous argument. Last December, a Republican-appointed judge in Texas held that the whole Affordable Care Act was invalid. Though that decision came in for widespread derision, it now looks as if a Republican majority on a panel of the U.S. Court of Appeals for the Fifth Circuit, which heard oral argument in the case last week, may agree.

How did it come to this? What the hell is going on?

The explanation is rooted, I think, in a sort of Know-Nothingism that’s taken hold in some corners of the conservative legal movement. This Know-Nothingism is a cancerous outgrowth of textualism, a method of statutory interpretation to which most Republican-appointed judges now subscribe.

Though I have my quarrels with textualism, its key insight is correct: Close attention to statutory text really is the best way to discern a law’s meaning. As sophisticated textualists understand, however, reading the text doesn’t mean we must ignore what Congress meant to accomplish. To the contrary, as Caleb Nelson (himself a textualist) has explained, “Judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature.”

Yes, staunch textualists resist calls to use legislative history—statements of legislators, committee reports, and the like. They also think it’s inappropriate to invoke a statute’s generic purpose (“Save the whales,” “Protect investors”) to twist its plain meaning. But they still look to a wide array of statutory and contextual evidence to excavate “subjective intent”—to identify the problem that Congress meant to solve and the means it chose to solve it. “A fair reading of legislation,” Chief Justice John Roberts wrote in Obamacare’s last brush with death, “demands a fair understanding of the legislative plan.”

The Know-Nothing judge, however, like a 1970s French literary theorist, denies we can ever know what Congress really means to do when it passes a law. And why should we care anyhow? Intentions aren’t laws. If assigning the most literal interpretation to a statute’s text subverts what Congress intended, so be it. The Know-Nothing judge consoles herself with the fable that all she’s doing is applying the law. She’s not an activist. You are.

This sort of blinkered Know-Nothingism was on florid display in last week’s arguments before the Fifth Circuit. When Congress repealed the mandate penalty, it left on the books the now-defunct requirement that most everyone “shall” secure coverage. And “shall” is a command to buy insurance, right? As one of the judges said, “The only way to know what Congress intended”—the only way!—“is what they say through their legislation and they left in place the mandatory nature of the mandate.” Her colleague appeared to agree: “Shall” ends the matter. The judges seemed to be edging toward the conclusion that because Congress lacks the power to impose a coercive command, the mandate must be unconstitutional.

This is a silly argument. The notion that a Republican-controlled Congress passed a law in 2017 meant to coerce people into buying insurance is pure fantasy. When the Supreme Court upheld the individual mandate back in 2012, it read the same word—“shall”—to afford people a “lawful choice” to either buy insurance or pay a penalty. When Congress zeroed out the penalty, the natural inference is that Congress meant to leave the “lawful choice” to go without coverage in place.

Plus, if you actually read the Affordable Care Act, it’s clear that Congress never imposed any mandatory obligation in the first place. After saying that everyone “shall” secure insurance, Congress exempted certain classes of people from the penalty, including members of Indian tribes. So have tribal members who’ve gone without insurance been breaking the law for years, without their knowledge? Of course not. Congress gave them a choice. Which is why, read in context, the “shall” can’t be understood as obligatory.

The Know-Nothingism gets worse. At last week’s hearing, one of the judges pounced on the argument that Congress couldn’t have believed that a zero-dollar mandate was an essential part of the whole health-care law. “How do you know that?” she asked. “How do we know that some members of Congress didn’t say, ‘Aha, this is the silver bullet that’s going to undo the ACA, or Obamacare. So we’re going to go for this just because we know it’s going to bring it to a halt.’”

It’s true that when Congress first adopted the Affordable Care Act back in 2010, it said the individual mandate was crucial to the law’s operation. But Congress’s initial findings were about a mandate backed by a penalty. They are irrelevant to a mandate backed by nothing. What’s more, we know for certain that Congress in 2017 believed it could safely ditch the mandate penalty and keep the rest of the ACA intact. We know because that’s what it did. It’s daft to think that the very same Congress harbored some secret belief that a completely unenforceable mandate was absolutely vital to the law’s continued operation.

Maybe the Fifth Circuit judges won’t endorse these Know-Nothing arguments when it comes time to write their opinion. But if they do, they will be willfully ignoring everything we know about the broader statutory language, about Congress’s failed campaign to repeal Obamacare, and about the consolation prize of repealing the mandate.

Because in the hands of a Know-Nothing judge, interpretation is not about fidelity to Congress. It’s a lawyer’s game deployed for partisan ends. Know-Nothing judges may drape themselves in the robes of judicial modesty, but they are activists to the core. And they may decide the fate of health reform.