What do King vs. Burwell, which challenges the Affordable Care Act, and Texas vs Johnson, a challenge to President Obama’s immigration executive action, have in common?
They cover different issues, but their origins, goals, and strategies are the same: Republicans attempting to use the courts to further their anti-Obama political agenda, while simultaneously railing against politicization of the courts.
Consider the following:
King was launched by the fiercely anti-Obama Competitive Enterprise Institute, using ordinary citizens as plaintiffs to achieve a result that’s adverse to their economic interests. Texas vs. Johnson was launched by 26 fiercely anti-Obama Republicans leaders, using tax dollars to finance their political agenda, to achieve a goal that’s not their states’ interests economically, socially or culturally.
The King case is all about completely destroying the ACA, which has become an obsession for Republicans. Unfortunately for them, the ACA is becoming a resounding success because it is providing millions of previously uninsured Americans with health care coverage. In fact, as outlined in a recent article in Mother Jones, if the King case eviscerates Obamacare the result could be catastrophic for Americans. “If the plaintiffs prevail about 8 million people could lose their health insurance. Premiums are likely to skyrocket by 35 percent or more, threatening coverage for millions of others. Health policy experts have estimated that nearly 10,000 people a year could die prematurely if they lose their coverage.”
The Texas case focuses on another of the GOP’s obsessions: immigration. A court order blocking Obama’s immigration action will not only lead to the deportation of low enforcement priority immigrants—namely DREAMers and parents of U.S. citizens and lawful residents—but will compromise the safety of American communities by preventing limited enforcement resources from targeting violent criminals, gang members, and national security risks. It will cost Americans economically by gutting a process that is expected to add billions of dollars to the nation’s Gross Domestic Product, decrease the national deficit and, perhaps most importantly, raise the wages of U.S. workers.
Both cases also stand on very tenuous legal footing. Last week Louise Radnofsky and Brent Kendall, writing in the Wall Street Journal, raised serious questions about whether several of the named plaintiffs in King vs. Burwell even had legal standing to sue. “One of the plaintiffs,” they wrote, “listed a short-term-stay motel as her address when she joined the lawsuit, potentially calling into question her basis for suing.” Two other plaintiffs, according to the article, could also face challenges to their standing to sue.
Standing to sue is also a serious problem for the plaintiff states in the Texas case. The 30-page lawsuit is chock-full of partisan rhetoric but fails to describe exactly how Texas and the other states are or will be concretely harmed by the temporary deportation reprieves; especially when the administration has used all resources allocated to it annually by Congress to detain and deport undocumented immigrants -- approximately 400,000 people a year -- leading some to label President Obama the "Deporter-in-Chief." And it gets worse. At least two federal courts have dismissed similar challenges to President Obama’s executive authority, most recently in a case brought by Joe Arpaio, the infamous anti-immigrant sheriff of Maricopa County Arizona, concluding Arpaio lacked standing to sue.
Most chillingly both cases are part of a distinct pattern of the right engaging in a sustained campaign to kill Administration policies—the ACA and Immigration Executive Action—legislatively, politically and legally. Congressional Republicans have repeatedly tried and failed to overturn both in vote after vote. In the case of Obamacare states with Republican governors have refused to build exchanges and opted out of Medicaid expansion. In the case of Immigration Executive Action states with Republican governors have refused to permit Deferred Action recipients to obtain basic benefits like drivers licenses, which would enable them to commute to school or work.
Republicans like to rail about activist judges. But, they are pinning their hopes to destroy Obamacare and insure maximum deportations on extrajudicial activism by federal judges. What they have failed to achieve legislatively—despite now controlling both chambers of Congress--they want Courts to do for them. In both cases, the plaintiffs forum-shopped to find the judges most likely to accept their bogus arguments. In the King case, that’s gotten them to the Supreme Court. Hopefully, in Texas, it will stop if Judge Andrew Hanen actually follows the law.
Leopold is an attorney and former president of the Washington, DC based American Immigration Lawyers Association.