Even the Trump administration asked the Texas federal district court to wait until open enrollment’s cutoff before ruling on the constitutionality of the Affordable Care Act. Unfortunately, the judge hearing the case, though a George W. Bush appointee, is just as hyper-partisan as any of President Trump’s picks. Judge Reed O’Connor issued a ruling declaringthe ACA as a whole to be unconstitutional one day before the Dec. 15 enrollment deadline.
According to O’Connor, the Supreme Court found the ACA was unconstitutional in 2015, under the Interstate Commerce Clause, which permits the federal government to regulate commerce among and between states. Chief Justice John Roberts & Co. only let it stand because the individual mandate’s penalty could be read as an exercise of Congress’s Tax Power. Since Republicans struck that penalty in 2017, he reasons, the ACA is no longer constitutional.
O’Connor was the choice of Bush, whose aggressively partisan judicial nominations paved the way for Trump’s. He has gone out of his way to rule against and normalize discrimination against LGBT people as a matter of “religious liberty.” O’Connor’s also ruled the Indian Child Welfare Act unconstitutional. (It’s not).
Conservatives knew they could count on him. Even better, from their perspective, they knew that if they brought this case in the Northern District of Texas they could count on his being the one to hear the case—O’Connor is his district’s only active federal trial judge. He didn’t disappoint. He even dropped conservative buzzwords in his ruling referring to the health care fight as “inflaming emotions and testing civility.”
Thing is, O’Connor has taken some liberties in his portrayal of precedent, as Amee Vanderpool points out.
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” wrote Roberts in 2015 ‘s King v. Burwell. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” Yet, rather than even issuing a preliminary injunction and proceeding with the case in trial court, O’Connor sided with the conservative states challenging the ACA in toto, granting them summary judgment.
Trump took to Twitter to declare victory, the fact that his DOJ wasn’t to credit—they’d just declined to defend the law—notwithstanding.
Trump’s interpretation is, well, a bit off.
What’s next? The case heads to the Fifth Circuit, which hears federal appeals from Texas, Louisiana, and Mississippi, or even the Supreme Court, though it’s unlikely that the court will grant pre-appellate certiorari. Although they can take a case directly from a district court, the justices rarely do so, preferring cases in which both the district and appeals courts have both already ruled.
The ACA’s odds of remaining intact are better at the Supreme Court than in the Fifth Circuit.
The Fifth Circuit isn’t a hospitable court for proponents of the ACA. It’s one of the most politicized appellate courts, tilted far to the right by Republicans abusing the judicial nominations process. As Demand Justice’s Executive Director Brian Fallon warned, “unsoundness of the lawsuit doesn’t matter much when the judges hearing the case are political hacks dressed in robes.”
The timing is particularly telling, as former Attorney General Eric Holder points out.
Rulings like O’Connor’s aren’t merely judicial theater; they’re assaults on the rule of law, attacks on our democracy.
Smart money says that this case will reach the Supreme Court and that Roberts will back the ACA again. He’s already refused to fall in line with conservatives’ political agenda at the expense of the court’s integrity, his judicial legacy, and, you know, the health of millions once before. Even better, he might be joined by Justice Brett Kavanaugh. While Kavanaugh’s not a fan of the ACA, he has previously touched on the tax-based rationale for the ACA’s survival.