Reed O’Connor knows that most legal analysts thought his decision demolishing the entire Affordable Care Act was dangerously, outrageously, brazenly wrong. He’s here to tell them that he stands by it anyway.
On Sunday, O’Connor, a Texas federal judge, put on hold his earlier ruling stating that Congress rendered the ACA unconstitutional by zeroing out the individual mandate in 2017. The stay would normally have been a formality, but O’Connor devoted 30 pages (and 78 footnotes) to a gratuitous reiteration of his first decision. His order is both pointed and defensive, a response to critics across the political spectrum who condemned his assault on Obamacare as lawless nonsense. Yet it manages to be even more incoherent than its predecessor, an unintentional demonstration of the flaws in his motivated reasoning.
The O’Connor kerfuffle is the latest chapter in the endless legal attack on the ACA. It is also the most frivolous. The case springs from Congress’ decision in 2017 to ax the penalty for Americans who fail to purchase health insurance. Although Congress did not officially repeal the individual mandate, it lowered the penalty to $0. In response, 20 states filed a lawsuit alleging that the mandate is now unconstitutional. They reasoned that, in 2012’s NFIB v. Sebelius, the Supreme Court upheld the mandate as a tax because it collected revenue for the federal government. Now that the mandate collects no money, the states argue that it cannot be justified as a tax and must be struck down as unconstitutional.
It doesn’t really matter if the states are correct, because the mandate is not currently in force, so a decision invalidating it would be an abstract victory at best. But the states have a broader argument: They claim that, without the mandate, the whole ACA must fall because the mandate cannot be severed from the rest of the law. O’Connor agreed with this theory and his widely panned opinion drew fierce criticism from both progressives and conservative opponents of Obamacare.
Notably, however, O’Connor’s opinion did not include an order directing the federal government to dismantle the ACA immediately. So 16 states and the District of Columbia, which intervened to defend the law, asked O’Connor to formally stay his decision while they appealed. Neither the federal government—which refused to defend the mandate and actually urged the court to strike much of it down—nor the plaintiff states objected to a stay, given that, without one, the ruling would instantly throw millions of Americans off their health insurance.
So O’Connor granted the request.
His order should’ve been about three pages, acknowledging the need for a temporary reprieve while restating his belief that the law must eventually go down. Instead, O’Connor embarked upon a bizarre screed regurgitating his initial ruling and then doubling down on its weakest points. The judge appeared eager to prove his critics wrong. He wound up digging himself further into a hole.
The fundamental problem with O’Connor’s theory of the case is that it makes no sense. Under the doctrine of severability, a court must lop off the provision of a statute that violates the Constitution. But it must leave the rest intact, unless Congress did not intend for the law to operate without the unlawful section. O’Connor held that Congress never wanted the law to operate without the individual mandate because it described the mandate as “essential” three times when it first passed the ACA. Since Congress considered the mandate “essential,” O’Connor wrote, it is inseverable. And the remainder of the law—from nondiscrimination rules to Medicaid expansion—cannot be allowed to function without it.
This is a crackpot argument. The Congress that passed the ACA in 2010 may indeed have considered the mandate to be essential. But the Congress that zeroed out the mandate obviously did not. By reducing the mandate to $0 but keeping the rest of the law, the 2017 Congress evinced its belief that a financial penalty is not an essential provision of the ACA. As Jonathan Adler explained in Reason, “It is simply nonsensical to rely upon the 2010 Congress’s findings to make judgments about the law as subsequently amended in 2017.” By doing so, O’Connor declared that the 2017 Congress was legally prohibited from amending the law based on its own implicit findings about severability because the 2010 Congress had already spoken definitively on the matter. That is an astonishing usurpation of legislative authority by a court.
Yet in his Sunday order, O’Connor framed his decision as a modest one. “The 2017 Congress’s ‘decision’ to not repeal the remainder of the ACA,” the judge wrote, “was not a ‘decision’ that supports an inference of severability intent.” Rather, “it was a consequence of [the mandate being zeroed out] as part of the budget and reconciliation process.” In other words, Congress killed the penalty because it didn’t have the votes to do more damage to the ACA—but was actually secretly voting to render the whole law unconstitutional. Through O’Connor’s looking glass, that means “the 2017 Congress demonstrated no legislative intent to leave the ACA intact.” As a result, the courts must follow the 2010 Congress’ ostensible wishes and obliterate the entire law, not just the hollowed-out mandate. Any conclusion to the contrary, O’Connor explained, “would represent a breathtaking conception of the judicial power.”
What? This gibberish boggles the mind. It gets worse when read in tandem with O’Connor’s 78 bloated footnotes, which include digressions on St. Thomas Aquinas, “secular natural law,” the Emoluments Clause litigation, Marbury v. Madison, the Ninth Amendment, and a book review by one Brett Kavanaugh. But the weirdest tangent arrives when O’Connor throws in a statement made by Justice Anthony Kennedy during oral arguments in the first Obamacare case. Kennedy dissented from that decision, yet O’Connor cites his jibe from the bench as if it carries the force of the law. There could be no clearer indication that the judge is living in a Fox News fantasy world.
The Supreme Court will almost certainly reverse O’Connor, if the case even gets that far; there is a good chance that the 5th U.S. Circuit Court of Appeals will uphold the ACA and SCOTUS will decline to hear this frivolous case. O’Connor’s Sunday order illustrates that the judge really isn’t in on the joke: Unlike the partisan state attorneys general who launched this litigation for political points, O’Connor seems to believe in his heart that Congress accidentally killed the ACA in 2017. It is sad to watch a federal judge descend into such fallacious delusions.
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