Thread by @nathansnewman

The Texas decision is complete idiocy.

Of course it could be upheld but that will be a decision by Chief Justice Roberts to make the Supreme Court an object of ridicule. /1

documentcloud.org/documents/5629…

The original federalism theory of the dissent in NFIB v. Sibelis (partially endorsed by Roberts) was that the individual mandate was in some ways a criminal punishment - even though structured as a tax /2

Following earlier federalist decisions like Lopez and Morrison, such a penalty was outside Congress's power since buying individual insurance is not covered by the Commerce Clause (a ridiculous stretch but let's go with it). Roberts saved ACA by putting it under the tax power /3

Ah but GOP removed the tax in 2017 so no tax, no tax power to save the ACA.

Except that also means NO QUASI-CRIMINAL PUNISHMENT EITHER, so nothing violating individual liberty. /4

But hey, the law still "requires" people to get insurance even though there is no penalty, but that is now under the law equivalent to an exhortation to eat carrots - a nice sentiment but without any teeth. /5

But the district court basically declares this empty exhortation to buy insurance to be so coercive, such an affront to the division of powers between federal and state governments, that the whole ACA must now to struck down as unconstitutional. /6

Why? Because in 2009, the Democratic drafters declared the now-meaningless mandate to be "essential" yet the GOP deleted that "essential" tax without killing the rest of the law, so obviously they legislatively thought the parts were severable. But judge breezes past that. /7

Seriously, the body of federalism doctrine by conservatives is bad but has some small degree of coherence.

Only if Justice Roberts wants to make that whole body of doctrine & the Court itself reduced to being a partisan cesspool will he uphold this decision. /8

Given Roberts recognizes a mess of issues calling into question the legitimacy of Trump's Presidency will be landing in his lap soon, he will be choosing whether to taint the institution at a time of maximum constitutional crisis. /9

Maybe Roberts wants to go down in history as the last Chief Justice of an independent Supreme Court, since the court packing and other maneuvers that will follow this will largely end that history as the personnel of the Court becomes a pure reflection of shifts in Congress. /10

I doubt he wants that but Dems should have a simple message for him.

Republican Justice Roberts - and the party affixation will become indelible - will join Trump as the partisan object of all campaigns in 2020. /11