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January 14, 2011

Kansas Seeks to Join Multistate ObamaCare Lawsuit; Brings Number of States Suing to 26

Following the elections, newly GOP-led states Ohio, Wisconsin, and Wyoming also asked permission to join. A decision from the district judge in the multistate suit is expected at any time. Virginia filed its own lawsuit and already saw success at the district court. Oklahoma just filed its own lawsuit against ObamaCare.

That brings the number of states suing the federal government to 26. As Ilya Somin writes, it shouldn't matter legally if one state sues or all of them. But it still helps to show widespread objection:

But in politically sensitive cases such as this one, legal arguments are not the only factors that matter. The Supreme Court is usually reluctant to strike down a major federal law that has strong support from the president and his party and is a big part of their political agenda. In this case, however, the law in question is unpopular with the general public. . . . And the states’ action is an indication that it is also disliked by a large part of the political elite. Widespread popular and elite opposition gives the Court the political cover that it would need to strike down the law. If the political winds continue to blow against the law, the justices can be confident that a decision to strike it down won’t create a dangerous backlash against the Court.

There is a bit of variation in the arguments raised in each lawsuit, as I discussed here, so it's still good that there's more than one on track. Appellate courts, including the Supreme Court, won't reach arguments raised for the first time on appeal. Having more than one lawsuit also gives various circuit courts of appeals a crack at it, providing a fuller record for the Supreme Court to ultimately consider. As I wrote before, sometimes it's strategically helpful to give the Supreme Court justices (ahem, Kennedy) some room to maneuver.

There's some psychology that individuals are more likely to respond positively if they have options. As far as result goes, it doesn't matter how ObamaCare gets knocked down, only that it gets knocked down. That's just a simple "yes or no" question. But sometimes you have to make the "yes or no" question more attractive. Psychologically you can do that by turning it into a multiple choice problem. Give the judge options A, B, and C, -- various reasons to knock down the law . . . say the Commerce Clause, Tax Clause, and General Welfare Clause arguments against ObamaCare. Option D is to uphold the healthcare law. The judge or justice faced with the multiple choice version has an opportunity to be clever (and you know how judges love to get "clever"), saying "no" to one or two of A, B, and C, while still ultimately finding the law unconstitutional.

I've seen this at work myself when I was clerking. A judge would get off track thinking about the options, when the real answer should have been a simple: "no way."

As far as Somin's "political cover" argument, there's some unfortunate truth to the idea that Supreme Court justices sometimes consider the legitimacy of the Court in the eyes of the public and not just the legitimacy of the legislation it is called on to review. In light of accelerated backlash against judges who issue unpopular decisions, it's no wonder.

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posted by Gabriel Malor at 07:38 AM

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