Texas judge goes rogue on Obamacare

Republicans like to decry the rulings of “activist judges” who issue decisions that replace the will of Congress with their own views and policies. Well a federal judge in Texas, an appointee of President George W. Bush, has done just that — in spades — with his ruling that the Affordable Care Act is null and void.

Or to put it another way:

“The opinion by Judge Reed O’Connor is an exercise of raw judicial power, unmoored from the relevant doctrines concerning when judges may strike down a whole law because of a single alleged legal infirmity within.

“This decision makes a mockery of the rule of law and basic principles of democracy — especially Congress’s constitutional power to amend its own statutes and do so in accord with its own internal rules.”

We didn’t say that — attorneys Jonathan H. Adler and Abbe R. Gluck said that in a New York Times op-ed they co-wrote last week. They also happen to be legal experts on constitutional law and the respective roles of Congress and the judiciary. Adler’s writings served as the underpinnings of the legal arguments that challenged the Affordable Care Act when it reached the U.S. Supreme Court twice. Gluck, conversely, has submitted legal arguments in favor of the health law’s constitutionality.

They agree on one thing; Judge O’Connor’s ruling was way out of constitutional bounds and should be overturned on appeal. The law remains in place pending that appeal.

In 2015, with Chief Justice John Roberts writing for the majority, the U.S. Supreme Court upheld the constitutionality of the mandate requiring citizens to purchase health insurance or face tax penalties. Roberts pointed to Congress’s taxing authority.

In 2017, as part of its tax-cut bill, the Republican majority in Congress reduced the mandate tax penalty to zero, effectively eliminating it.

Congress left the rest of the Affordable Care Act in place, however, which makes O’Connor’s ruling nonsensical.

Texas and 19 other states, all in Republican control at the time, argued that with the penalty tax zeroed out, the mandate no longer enjoyed the constitutional protection the Roberts’ court had provided it.

O’Connor found in favor of the plaintiffs, ruling the mandate newly unconstitutional. That didn't make much sense. But then he went much further. O’Connor ruled that the mandate was so central to the ACA that the entire law could not continue without it. Gone would be the ability to buy insurance policies on the state exchanges; the extension of Medicaid to cover more people; the prohibition against insurance companies denying coverage (or charging excessive premiums) to folks with existing medical conditions; and the ability to keep children on family plans until age 26.

The problem for O’Connor is that Congress, having effectively repealed the mandate by eliminating the penalty (while leaving the rest of the law intact), had made its decision that the law could continue without it. So where does a judge get off thinking he can do what Congress did not?

In his decision, O’Connor argues that Congress really wanted to appeal the entire law but did not have the votes. What? There is no will of Congress until the Senate and House produce a majority of votes, which they could not do — beyond appealing the mandate tax penalty. That’s called democracy.

As one experienced jurist put it, precedent and constitutional norms require a court that finds an item unconstitutional to “sever (the) offending provision from the statute to the narrowest extent possible unless Congress has indicated otherwise in the text of the statute. This default rule has the benefit of stopping judges from trying to guess what Congress would have wanted, an inherently suspect exercise.”

That statement comes from newly seated Supreme Court Justice Brett Kavanaugh when writing for the Harvard Law Review in 2016.

If O'Connor's rulling stands, an estimated 20 million people would lose access to health insurance. That would be a great way for Republicans to build momentum toward the 2020 election.

Fortunately for Republicans and the 20 million, the ruling almost certainly will not stand.

The Day editorial board meets regularly with political, business and community leaders and convenes weekly to formulate editorial viewpoints. It is composed of President and Publisher Tim Dwyer, Editorial Page Editor Paul Choiniere, Managing Editor Tim Cotter, Staff Writer Julia Bergman and retired deputy managing editor Lisa McGinley. However, only the publisher and editorial page editor are responsible for developing the editorial opinions. The board operates independently from the Day newsroom.

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