Judge Reed O’Connor, from the federal district court in Fort Worth, Texas, held that the 2010 health care law is unconstitutional. Not much is going to change right away, as the state attorneys general defending the law have promised to appeal the decision to the Circuit Court of Appeals and, if need be, to the U.S. Supreme Court after that.
The process could take months and possibly years. The Trump administration, despite its unwavering criticism of “Obamacare” and refusal to defend the law in court, has already said it will continue to manage the program as before — which means that the tens of millions of Americans who depend on it for insurance are safe for now.
But that would change if O’Connor’s ruling prevails on appeal and the law really comes off the books.
Full repeal of the Affordable Care Act, President Barack Obama’s signature legislative accomplishment, is a goal most conservatives have long sought. And yet since O’Connor issued his decision, prominent conservatives have been speaking out against it.
One explanation for these warnings is that these writers genuinely see the ruling as an affront, both to their own conservative ideals and to broader principles of law.
Case Western Law Professor Jonathan Adler, an architect of the most recent lawsuit challenging the Affordable Care Act, said the ruling is “pretty bananas.” George Mason’s Ilya Somin, an outspoken and influential supporter of a previous legal challenge, says the linchpin of O’Connor’s thinking is “badly wrong.” Philip Klein, executive editor of the Washington Examiner and author of a book called Overcoming Obamacare, wrote that the decision is “an assault on the rule of law.”
Even the high priests of anti-Obama conservativism at the Wall Street Journal opinion page couldn’t bring themselves to support the ruling. In an editorial with the headline “Texas Obamacare Blunder,” they offer a point-by-point rebuttal to the ruling that sounds pretty much the same as what liberal critics have been saying.
The crux of the case is the individual mandate, which is the financial penalty for people who do not have insurance and which falls to zero starting in January, because that’s what Republicans in Congress decided to do as part of the tax cut bill they passed and that President Donald Trump signed last year.
O’Connor said that change renders the mandate unconstitutional, because, in a 2012 decision upholding most of the Affordable Care Act, the majority opinion from Chief Justice Roberts justified the mandate as an exercise of congressional authority to levy taxes ― and a financial penalty of zero value can’t be a tax, O’Connor ruled.
That part of the ruling, though debatable, is relatively unimportant. But O’Connor proceeded to rule that the rest of the law can’t stand, either, because when Congress wrote the Affordable Care Act in 2010, it thought the mandate was essential to its functioning ― which means that, with no mandate, the rest of the law can’t work either.
As Adler, Klein, the Journal editorial page and others ― left as well as right ― keep pointing out, this argument fails on several grounds. Under clearly established, well-understood standards for “severability,” judges who find parts of a law unconstitutional are supposed to seek the least disruptive remedies possible.
“When one part of a statute is ruled unconstitutional, courts are not supposed to strike down other parts of the same law unless they are inextricably connected and Congress would not have intended the latter to function without the former,” Somin wrote for Reason’s Volokh Conspiracy blog.
“The principle presumes that, out of respect for the separation of powers, courts will leave the rest of the statute standing unless Congress makes clear it did not intend for the law to exist without the challenged provision,” Adler and a liberal co-author, Yale law professor Abbe Gluck, wrote in a New York Times op-ed. “It is an uncontroversial rule that every Supreme Court justice in modern history has applied.”
Adler and Gluck go on to note that sometimes it’s tricky figuring out what Congress intended, because a statute is old or lawmakers didn’t address an issue head-on. Neither condition is true in this case, they and the other conservatives note.
The debate over the tax bill happened just one year ago and, after that debate was done, Congress decided to eliminate the mandate penalty fully aware that the rest of the Affordable Care Act would remain in place. Whether or not that was a wise decision, the conservatives note, it was clearly intentional ― and O’Connor should have respected that.
“When Congress killed the financial penalty in 2017 it left the rest of ObamaCare intact,” the Wall Street Journal’s editorialists noted. “When judging congressional intent, a judge must account for the amending Congress as well as the original Congress.”
Klein agreed, noting that “it’s impossible to see how the mandate can be seen as inseparable from Obamacare after Congress just acted to separate it.”
One explanation for these warnings is that these writers genuinely see the ruling as an affront, both to their own conservative ideals and to broader principles of law that are supposed to transcend typical ideological divisions.
“This is an embarrassingly bad decision, and if a liberal judge had issued something like it goring a conservative ox, conservatives would be rightly up in arms,” Ted Frank, director of litigation at the Competitive Enterprise Institute, wrote in a tweet.
The more cynical interpretation of these condemnations is that the conservatives are simply thinking about the political blowback to Republicans as the case proceeds and, especially, if eventually it succeeds — taking away financial support and insurance protections for millions.
The Wall Street Journal editorial raises this possibility explicitly and repeatedly, reminding Republicans of how Democrats successfully used the lawsuit as a political attack during the 2018 midterm elections.
“Democrats campaigned across the country against [the lawsuit] to gain House and Senate seats in November, and they will now press votes in Congress so they can compound the gains in 2020,” the Journal editorial stated.
Whatever the motives of conservatives, the objections to this case represent a striking contrast to the reception that the last two legal attacks on the Affordable Care Act had. In both of those cases, conservatives were mostly united in support.
The change in tone this time would seem to be an indication of just how weak the arguments are ― and perhaps, a warning that even conservative judges higher up in the federal judiciary will heed if and when this latest case comes before them.