Extreme Political Lawfare Is Deleterious To The Republic And Both Sides Need To Stop Using It

The only people who win in extreme political lawfare are the lawyers.
The post Extreme Political Lawfare Is Deleterious To The Republic And Both Sides Need To Stop Using It appeared first on Above the Law.

The Affordable Care Act — you might know it as Obamacare — is the most challenged statute in American history. More than 2,000 lawsuits have attacked the ACA, including seven that made it to the U.S. Supreme Court over the course of its first 10 years.

What has all of this legal wrangling accomplished? Close to nothing, if what you mean by an “accomplishment” is a lawsuit achieving one or more of its stated goals. There have been a few judicial modifications around the edges of Obamacare. The penalty for the ACA’s individual mandate has fallen. Yet, for the most part, the law has proven astoundingly resilient to years of prolonged legal warfare.

Of course, as any good lawyer can tell you, the effects of an individual lawsuit often ripple far beyond the intentions of the original parties. The precedents established by more than a decade of lawfare against the ACA have had a huge impact on constitutional law, statutory interpretation, and federalism.

More broadly, using ACA litigation as a political cudgel will go down in history as a catastrophic failure. By demonizing a dizzyingly complex law known to many as “Obamacare,” Republicans saw an opportunity to undermine their opponents on the left. For a relatively short time, blaming every problem within a reviled health care system on Obamacare seemed to pay dividends in opinion polls.

Ultimately, though, the strategy backfired. Challenging the ACA so unrelentingly drew media attention and actually helped Americans better understand the substantial benefits of the law. After an initial dip following its passage, public support for the ACA climbed steadily as more and more lawsuits against it were filed, to the point where a Congress wholly controlled by Republicans was unable to repeal the ACA during Donald Trump’s first presidential term in defiance of his repeated campaign promises. For real patients, its ability to withstand the legal onslaught allowed the ACA to protect a generation of Americans with preexisting conditions from the most gruesome whims of the private health insurance marketplace.

The ACA presents the most iconic example of overly exuberant litigation for perceived political gain, but it is not the only one. Nor is this a problem confined to the right end of the political spectrum.

For instance, there is practically a cottage industry of left-wing interest groups with no other purpose than to sue government agencies as a way of trying to block just about every project that could conceivably have any effect whatsoever on the environment. The National Environmental Policy Act is a primary means of doing this, although there are many others.

Obviously certain proposed projects that would be environmental disasters can and should be challenged, but NEPA’s broadness lets just about anyone with just about any grievance sue, and sue they do, over everything from wind turbines to interstate highways. This is one of the main reasons why it costs so much more to build anything in this country than it does almost anywhere else on earth. In America, every project needs to build into its cost the large expense of defending a NEPA lawsuit.

Whether you’re trying to stop people from getting health care or whining about a windmill, these lawsuits are largely performative. You get to seem like you’re fighting without winning the real fight, which is convincing enough of your peers that you are right so that you don’t have to single-handedly stand in the way of whatever form of progress the majority of voters apparently chose to support in the last election.

The only people who win in extreme political lawfare are the lawyers. Everyone else just gets way more expensive public works projects. Don’t fruitlessly donate your money to lawyers who don’t need it anyway.

Look, I’m not saying that there is never an important NEPA lawsuit or that it’s uncalled for to ever challenge a major federal law. We just have to become way, way more judicious about bringing these suits. Wouldn’t, like, five lawsuits against Obamacare have been enough instead of 2,000?

You don’t have to love everything that’s happening to decline to sue someone whenever you’re upset. Maybe you can try to focus on the merits of a particular project, or at the very least accept that it represents the will of a majority of the people irrespective of your own political position.

Hell, if you’re a donor to an organization that regularly pursues these sorts of lawsuits, perhaps you could even consider whether your money would be better spent tackling the underlying issue rather than paying lawyers to blab about it. If you hate wind turbines, fine, maybe invest the money in some other form of energy production.

There are about to be a lot of proposals coming down the federal pipeline that Democrats, and Americans in general, won’t like. When they do, we ought to learn the lesson of Republicans and the ACA: we cannot sue our way out of this. Trying to will only backfire.

Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at [email protected].