A Partisan Ruling on Obamacare
A decision by a judge in Texas striking down the totality of the Affordable Care Act has little basis in law.
By Cristian Farias
Don't panic. The ruling, issued late on Friday and only one day before the end of the law's annual open enrollment period, is not a model of constitutional or statutory analysis. It's instead a predictable exercise in motivated reasoning — drafted by a jurist with a history of ruling against policies and laws advanced by President Barack Obama.
The reason the judge, Reed O'Connor, gets these cases isn't a mystery: Texas and its allied states know the game and shop these lawsuits right into Judge O'Connor's courtroom.
Another thing that isn't a mystery? The genesis of this latest attack on Obamacare. Disenchanted that a Republican-controlled federal government wouldn't repeal every word of the law, Texas and a coalition of states tried a sleight of hand: They leaned on President Trump's 2017 tax bill, known officially as the Tax Cuts and Jobs Act — which zeroed out the tax penalty of the health care law's individual mandate — and argued that the mandate itself was unconstitutional.
That argument has a certain flair to it, but the states didn't stop there. Their lawyers suggested that, because the individual mandate is a linchpin of the A.C.A. as a whole — in fact, the one thing that holds the law together — the law cannot stand without it. If the mandate falls, the logic went, the entire statute falls with it.
Shocking even conservative legal experts, the Trump administration fell for this spurious argument and lent its support to the Texas lawsuit — which, if successful, would render all of the marquee provisions of Obamacare, like protections for patients with pre-existing conditions, null.
This all-out assault on health care is one reason Democrats did so well in the midterm elections, as voters rejected anti-Obamacare candidates at the polls. They included several lawmakers who had gleefully voted for Mr. Trump's tax bill less than a year earlier.
Except the tax bill did not invalidate the Affordable Care Act — it did away only with the penalty for not being insured. Congress left the rest of the law intact.
Instead of respecting that legislative choice, Judge O'Connor proceeded to find all the operative provisions of the A.C.A. "inseverable" from the hollowed-out individual mandate. The whole law must fall. He gave the Texas-led challengers precisely what they wanted.
This partisan, activist ruling cannot stand. If it's not reversed by the conservative United States Court of Appeals for the Fifth Circuit, then it's off to the Supreme Court, where all five justices who, in 2012, already determined that the Affordable Care Act was constitutional will still be there.
One of them is Chief Justice John Roberts, who made a splash last month when he appeared to rebuke Mr. Trump's criticism of judges who don't rule as the president likes. The president this time around is rejoicing over Obamacare's apparent demise — and is heaping praise on the "highly respected judge" who was itching to do Republicans' bidding. (The White House, in a modicum of decency, has said the law will stay put as the appeal moves through the courts.)
But as Chief Justice Roberts said when he cast the decisive vote that upheld Obamacare, "It is not our job to protect the people from the consequences of their political choices." Here the American people, through their elected representatives, made their choice, both in 2010 and 2017: Obamacare is the law of the land. It will remain that way.
New York Times. December 15, 2018. Cristian Farias
Mr. Farias is a member of the editorial board.
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December 15, 2018
Post Script . A Trump Party judge has struck a blow at Health Care for Americans but a range of analysts I have read who know about such matters say it won't matter. I posted this sample so you could relax and have a better weekend. #KeepAmericansHealthy #ProtecttheACA
