The Latest Ruling Against Obamacare Is a Bridge Too Far—Even for SCOTUS

Chief Justice John Roberts poses for the official group photo at the U.S. Supreme Court in Washington on Nov. 30
Chief Justice John Roberts poses for the official group photo at the U.S. Supreme Court in Washington on Nov. 30 Mandel Ngan/AFP/Getty Images

U.S. District Judge Reed O’Connor declared the entire Affordable Care Act unlawful on Friday, concluding in a widely panned ruling that Congress destroyed the law by zeroing out the individual mandate in 2017. Here are the two things you need to know about this decision: There is slim to no chance it will stand on appeal, and it should not affect your life at all.

The latest challenge to the ACA is the most frivolous attack on the law so far, and that’s saying something. Texas, joined by a coalition of Republican governors and attorneys general, filed a lawsuit in February 2018 asking a federal district court to invalidate the ACA. It argued that because Congress reduced the financial penalty for those without health insurance to $0, the individual mandate can no longer be upheld as a tax. It then insisted that, because the mandate is unconstitutional, the entire act must be eliminated. In a shocking move, the Department of Justice refused to defend the full ACA. Instead, the DOJ agreed that the mandate is now illegal and urged the court to strike it down, along with other key reforms—including protections for people with pre-existing conditions.

Texas found a receptive court, which was no accident: It filed its suit in the Northern District of Texas, Fort Worth Division, where there is exactly one judge who is not semi-retired: O’Connor. A staunchly conservative jurist, O’Connor is notorious for issuing nationwide injunctions against progressive policies at Texas’ behest, such as federal safeguards for transgender Americans. There was little question that O’Connor would grant Texas’ request and rule that every piece of the ACA must fall.

But that doesn’t mean O’Connor is correct, or that any other judge will agree with him on appeal. Indeed, academics across the political spectrum have repudiated Texas’ argument, with good reason: It just doesn’t make any sense. Jonathan Adler and Abbe Gluck, two highly respected scholars on opposite sides of the last big ACA case, have teamed up this time around to explain why this case deserves to go nowhere.

The fundamental question here is not whether the individual mandate is still constitutional when its penalty is zero dollars. Chief Justice John Roberts famously upheld the mandate in 2012 by calling it a tax; Texas now asserts that it can no longer be justified as a tax because it does not collect revenue for the federal government. Is that correct? Who cares? It doesn’t really matter, because the mandate is not in force. Whether or not it may continue to exist on paper is an abstract debate. Either way, the federal government will collect no money from the zeroed-out penalty.

Why, then, did Texas bother with this suit? Because it wants to exploit the mandate’s evanescent status to demolish the whole law. Texas claims that the mandate is not “severable” from the ACA—meaning that if the mandate falls, the rest of the law must go as well. That’s nonsense. Under the long-standing principle of severability, a court must generally chop off the part of a law that violates the Constitution, leaving the rest intact. It may only strike down the remainder of the statute if Congress clearly did not intend for the legislation to operate without its illegal provision.

As Adler and Gluck explained in the New York Times, the mandate is obviously severable from the rest of the ACA. This, they write, “is an easy case”:

It was Congress, not a court, that eliminated the mandate penalty and left the rest of the statute in place. How can a court conclude that Congress never intended the rest of the statute to exist without an operational mandate, when it was the 2017 Congress itself that decided it was fine to eliminate the penalty and leave the rest of the law intact? … Congress is allowed to amend its own law, and the Constitution does not permit any court to undermine that power.

Put simply, Congress decided in 2017 to repeal the penalty but keep the remainder of the ACA. O’Connor now purports to overrule that decision and eradicate the entire law, insisting that, by tweaking the ACA, Congress was actually secretly voting to kill it. His ruling constitutes egregious judicial overreach, partisan activism in the guise of judicial decision-making. It is an affront to the constitutional separation of powers and an embarrassment to the federal judiciary.

O’Connor did not immediately block the ACA—recognizing, perhaps, the havoc that would ensue if millions of Americans were suddenly denied health insurance because a judge unilaterally abolished Medicaid expansion, health care exchanges, and every other reform. His decision will now be appealed to the 5th U.S. Circuit Court of Appeals. Although the 5th Circuit is quite conservative, I struggle to believe that it will agree with O’Connor. On the off chance that it does, it is implausible that a majority of the Supreme Court will uphold O’Connor’s ruling. Roberts, having twice stuck out his neck to save the ACA, will not stoop to take this case seriously. I am not even sure that the other conservative judges will be willing to suspend their intellects to entertain this absurd lawsuit.

It is probably not a coincidence that O’Connor issued his decision on a Friday night—the day before open enrollment for ACA exchanges closed in most states. There is typically a last-minute surge in signups as open enrollment ends, and O’Connor’s ruling spread confusion about the continued legality of health care exchanges. There should be no ambiguity here: The ACA is the law of the land, and will very likely remain so for the foreseeable future. O’Connor’s decision will almost certainly be overturned on appeal. The best thing Americans can do at this point is ignore the mayhem unleashed by O’Connor—and vote out the GOP politicians who brought this preposterous case to his doorstep.