Nobody Actually Cares About Federalism, An Infinite Series

Responding to Abbe Gluck’s argument that the troofer reading of the ACA violates the clear notice requirement that is now well-settled constitutional law, Ed Kilgore observes:

This argument may or may not have an influence on, or find reflection in, SCOTUS’ decision. But don’t expect the conservatives praying for the plaintiffs to win to read it and say, “Oh, I get it! Never mind.”

Truth is most conservatives value “state’s rights” or “federalism” only when it does not conflict with their more important ideological values, such as capitalism or their idea of Divine Law. This is why they mostly support federal constitutional amendments to override state prerogatives on cultural issues like abortion and same-sex marriage, and when in a position to do so, support federal preemption of state laws and regulations that annoy or inconvenience corporations. Indeed, one example is almost invariably included in those Obamacare “replacement” proposals Republicans say they’d pursue if King goes their way: “interstate health insurance sales,” which is a nice way of saying a preemption of state health insurance regulations so that insurers can race to the bottom-feeding state that lets them do whatever the hell they want.

All true.

The significance of the federalism argument is that it might appeal to Roberts if he’s only weakly committed to gutting the ACA. The clear notice argument would allow Roberts a passive-aggressive escape hatch straight out of the John Marshall playbook: willfully misread a statute, criticize your political opponents, advance long-term institutional goals, but concede to your opponents on the immediate substantive issue. If Roberts is strongly committed to wrecking the exchanges it won’t matter, but if he doesn’t feel strongly the argument might influence him.