In one of those “wait, this really happened?” moments, I made an appearance on This American Life to discuss Texas v. United States. The story came from David Kestenbaum, who framed the case around the idea of dividing by zero. “Mathematicians,” he said, “call this kind of situation a singularity, where the math is not well-behaved.” So too with the weird possibility that eliminating the mandate penalty could bring the whole Affordable Care Act crashing down.
Here’s my favorite part of the story:
I talked to Bagley back in July on the day that the appeals court heard the case. We listened together online. The arguments the lawyers made were all about standing, severability doctrine, the meaning of the word shall. What did Congress intend when it set the tax to zero? It did not go well for the Affordable Care Act, for Bagley’s side. You could tell from the judge’s questions. Bagley’s exact words while we listened included things like–
This is really bad. This is really bad.
This is about as bad as you could expect from an oral argument.
He was truly surprised. He thought the legal argument that zero could take down the whole law was, quote, “weak to the point of frivolousness.”
I remain of that view, of course. The Fifth Circuit could decide the case any day. I’m waiting with bated breath.