Last February, a bloc of 20 Republican governors and attorneys general brought a lawsuit seeking to repeal the Affordable Care Act. Then they ran into a problem. Some of these officials faced reelection races in 2018. Others sought higher office. And repealing Obamacare is unpopular.
One of these officials, Senator-elect Josh Hawley (R-MO) even ran an ad where he lied to his state’s voters and claimed that he supports “forcing insurance companies to cover all pre-existing conditions,” even as he litigated a suit seeking to eliminate these protections for people with preexisting conditions.
But these Republicans were clever, and they found a solution to their political dilemma. The Republican officials filed their case in Fort Worth, Texas, where the only active federal district judge is Reed O’Connor, a highly partisan judge with a long history of striking down Democratic policies on spurious legal reasoning.
This effort to get this case before Judge O’Connor proved to be a stroke of genius. On Friday, O’Connor issued his decision purporting to repeal Obamacare. Even better, O’Connor waited until after the midterm elections were over to issue his decision — ensuring that his partisan legal opinion would not step on the GOP’s efforts to deceive voters into believing that they would protect people with preexisting conditions.
O’Connor’s laughable reasoning
The premise of O’Connor’s opinion in Texas v. United States is that Congress’ decision to repeal a single provision of the Affordable Care Act necessarily requires the courts to repeal the entire law. O’Connor justified this result through a two-step argument — the first part of which is plausible but largely academic, and the second part of which is laughable.
As enacted in 2010, the Affordable Care Act requires most Americans to either carry health insurance or pay higher income taxes. This is the law’s “individual mandate,” which encourages people to buy health insurance before they become sick. In NFIB v. Sebelius, the Supreme Court held that this individual mandate is a valid exercise of Congress’ power to tax.
Seven years later, the Trump tax law effectively repealed this individual mandate. Though the 2017 legislation leaves in place most of the Affordable Care Act’s language establishing an individual mandate, it reduces the amount of the tax to zero — rendering the mandate a nullity.
The first step of O’Connor’s argument claims that this lifeless husk of a mandate is unconstitutional. Though the mandate currently does absolutely nothing, the law still contains language providing that most Americans “shall” obtain health coverage. NFIB upheld this language as an exercise of Congress’ power to tax, but the zeroed-out mandate no longer functions as a tax. So O’Connor claims that the neutered mandate is unconstitutional.
This is the least ridiculous part of O’Connor’s opinion, but the consequences of this part of his decision should be nonexistent. Congress already stripped the mandate of any real effect, and the practical impact of a court decision striking down a law that does nothing should be nothing.
But O’Connor’s opinion then takes a turn away from legal reasoning and into partisan cosplay.
When a court strikes down part of a statute, it often must ask whether other, constitutional provisions of the law must fall along with the unconstitutional provision. This inquiry is known as “severability,” and it is an entirely speculative inquiry. It asks which hypothetical law Congress would have passed if Congress had known that it lacked the power to enact the one provision that was just struck down.
But such speculation is unnecessary in a case such as Texas, because Congress already answered this question. The Republican Congress spent much of 2017 debating how much of the Affordable Care Act to repeal. In the end, they only had the votes to repeal one provision, the individual mandate, and so that’s what they did.
Even if you assume that O’Connor is correct that the inert mandate is unconstitutional, he does not need to speculate which other provisions Congress would have wanted to strip away because Congress already answered this question. In the Trump tax law, Congress effectively repealed the individual mandate while leaving the rest of Obamacare intact. That’s conclusive evidence that Congress preferred to leave the rest of Obamacare intact.
It’s worth noting, moreover, the the Supreme Court specifically instructed judges not to cut too deeply into federal laws when they conduct a severability inquiry. As the Court explained in Murphy v. National Collegiate Athletic Association, “in order for other . . . provisions to fall,” the Murphy held, “it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”
Nevertheless, O’Connor ignores Congress’ clearly expressed intent and constructs a fantasy world where Congress intended an entirely different result. Congress stated that ” the Individual Mandate is ‘essential’ to the ACA,” O’Connor writes — a fact that is partially true about the law Congress passed in 2010. It’s also an irrelevant fact because the 2017 Congress has the power to reach a different conclusion.
So now what?
In the short term, O’Connor’s order is nothing more than a hate letter to the Supreme Court, advising them of just how much this one judge dislikes Obamacare. Though O’Connor declared that the law is invalid, he denied the plaintiff state’s request for an injunction. That means that, as a practical matter, his order should have no immediate effect.
In the ordinary course of business, O’Connor’s order would appeal to the very conservative United States Court of Appeals for the Fifth Circuit, and ultimately to the Supreme Court. Five judges on this court are Trump appointees, and several of the other Republicans are among the most conservative judges on the federal bench, so there is a very real danger that the Fifth Circuit panel that hears this case will share O’Connor’s hatred of Obamacare.
Should the Fifth Circuit affirm O’Connor’s decision, the case is all-but-certain to wind up in the Supreme Court, where it still faces long odds. This is not the first, or the second, time that Chief Justice John Roberts has been asked to weigh a wild legal theory claiming that Obamacare must be struck down or significantly wounded. In the last such case, Roberts signaled pretty clearly that he’s tired of hearing these kinds of political lawsuits.
So the smart money suggests that at least one of the Supreme Court’s Republicans will join the four Democrats in saving the law. But Texas v. United States also feels familiar in a different way. For the third time since Obamacare became law, an outlandish legal theory was treated seriously by a deeply ideological federal judge — and now the case seems destined for Supreme Court review. And, if past is prologue, it is likely that at least three members of the Supreme Court will embrace literally any legal theory that attacks Obamacare.