Partisan judges who impose reactionary policies from the bench often try to elevate their reasoning beyond the prattle of fringe-right talk radio. Not Jennifer Walker Elrod and Kurt D. Engelhardt of the 5th U.S. Circuit Court of Appeals. Both judges ruled on Wednesday that a key component of Obamacare—and perhaps the entire law—is now unconstitutional. Elrod (a George W. Bush appointee) and Engelhardt (a Donald Trump appointee) bashed the Affordable Care Act by parroting urban legends about its supposed threat to the republic. In the third footnote of an opinion that Engelhardt joined in full, Elrod suggested that the ACA’s passage was a “fraud”:
Some opponents of the ACA assert that the goal was not to lower health insurance costs, but that the entire law was enacted as part of a fraud on the American people, designed to ultimately lead to a federal, single-payer healthcare system. In a hearing before the House Committee on Oversight and Government Reform, for example, Representative Kerry Bentivolio suggested that Jonathan Gruber, who assisted in crafting the legislation, had “help[ed] the administration deceive the American people on this healthcare act or [told] the truth in [a] video … about how [the Act] was a fraud upon the American people.”
This tangent is extraordinary for four reasons. First, it’s utterly gratuitous, wedged into an overview of the ACA as if to tip off lower courts that they should evaluate the law with a jaundiced eye. Second, it credulously peddles a conspiracy theory with no basis in fact—that Democrats sought to use the ACA as a Trojan horse for single-payer health care. Third, Elrod cites a former Tea Party congressman, Kerry Bentivolio, who is best known for supporting the impeachment of Barack Obama without evidence of an impeachable offense and promising to hold a hearing on “chemtrails.” (If you have to quote a guy like Bentivolio to support your claims, you might want to rethink your argument.) Fourth, Elrod exaggerates Jonathan Gruber’s role, asserting that he “assisted in crafting the legislation.” In reality, Gruber ran economic models but did not help to draft the bill.
And yet Elrod wasn’t finished. In case readers didn’t get the idea, she tossed in another footnote on the next page that says “opponents of the ACA” argue that it “goes too far in limiting individuals’ freedom to choose healthcare coverage.” To bolster this proposition, Elrod cited former Republican Rep. Darrell Issa, who “argued that one of the ‘false claims’ that the Obama administration made in passing the Act” was that if you like your doctor or health care plan, you can keep them. Elrod and Engelhardt aren’t just hostile toward the ACA. They view it as a power grab, achieved under false pretenses to strip away “individuals’ freedom.” Is this a judicial opinion or a Breitbart comment section?
Some scholars are now arguing that the “fraud” footnote is so inappropriate that it should be struck from the opinion altogether. Josh Blackman, a professor at the South Texas College of Law who has defended the latest legal assault on Obamacare, wrote on Thursday that the lengthy footnote calling the ACA “a fraud on the American people” was an “unforced error.” He suggested that Elrod and Engelhardt remove it before it’s published in the Federal Reporter. Stephen E. Sachs, a professor at Duke Law School who is skeptical of the Obamacare litigation, also criticized the footnote, writing that “in a case with major policy consequences, courts should be especially careful to stick to the law and not to venture into the policy dispute.” Meanwhile, Nicholas Bagley, a University of Michigan law professor and the sharpest critic of Elrod’s opinion, wrote that her “partisan jabs are a tell. They signal that the opinion isn’t about the law. It’s an exercise of raw political power.” He added: “So go ahead, Fifth Circuit. Scrub the opinion of the partisan hackery. It won’t change a thing.”
Blackman, Sachs, and Bagley are undoubtedly correct that Elrod’s opinion is overt partisan nonsense. But I hope she and Engelhardt decide to keep it in.
We are entering a new age of judicial gaslighting, in which Republican-appointed judges contort the law to align with the GOP platform under the guise of impartial jurisprudence. Consider the conservative judges’ refusal to follow abortion precedent or uphold congressional subpoenas of Trump’s finances. These opinions are deceptively dry, cloaked in mind-numbing legalistic argle-bargle. In a perverse way, it is refreshing to see judges abandon any pretext of neutrality and embrace their inner Fox News commentators. Elrod and Engelhardt have revealed their true motives. Their opinion was obviously reverse-engineered from the conclusion that the law is illegitimate. Elrod asserts that when Congress zeroed the ACA’s penalty for uninsured Americans, it transformed the individual mandate from a tax into a command with which Americans must comply—even though there is no penalty for those who ignore it. That command, Elrod concluded, is unconstitutional. And some key portion of the rest of the ACA, maybe the whole thing, has to fall with the now-invalid mandate.
Bagley, Sachs, and other observers have exhaustively explained why this theory, cooked up by a coalition of red-state attorneys general, is bunk. First of all, since nobody is injured by a zeroed-out mandate, nobody has standing to sue. (What is the government going to do? Tax the uninsured for zero dollars?) Second, the notion that Congress turned the mandate into a “command” when it sought to rescind the duty to purchase health insurance is mind-boggling, counterfactual claptrap. Third, even if the mandate were now somehow unconstitutional, why should any other provision fall with it? When Congress zeroed out the penalty in 2017, it plainly determined that the ACA could function without it.
But you need not wade through Elrod’s 62-page opinion or even grasp the technical details of these arguments to recognize that they are garbage. You need only read Footnote 3 to know that everything to come will be bad-faith judicial legislating. With the footnote in place, we are freed from the obligation to pretend that this opinion is anything more than a purely political act poorly disguised as legal judgment.