A conservative panel of an especially conservative federal appeals court will hear a case on Tuesday brought by Republican officials who seek to repeal the Affordable Care Act in its entirety. The case is Texas v. United States.
Last year, a Republican judge with a long history of striking down Democratic policies on spurious legal reasoning handed down an order saying that Obamacare must cease to exist. If this decision is ultimately affirmed by higher courts, an estimated 19.9 million Americans will lose health coverage.
A study examining the impact of Massachusetts’ Obamacare-like reforms in 2006, moreover, estimated that “for every 830 adults gaining insurance coverage there was one fewer deaths per year.” If this formula is applied to the impact of a court decision repealing Obamacare, such a decision will kill approximately 24,000 people a year. Every year. For as long as that decision remains undisturbed.
The death panel considering whether to sentence tens of thousands of innocents to die includes three judges of the United States Court of Appeals for the Fifth Circuit — two of whom were appointed by Republican presidents. Judge Jennifer Elrod is a George W. Bush appointee known for her decisions limiting voting rights, striking down liberal immigration policies, and undercutting the right to an abortion. Judge Kurt Engelhardt is a Trump appointee — though, in fairness, he’s also less a bomb thrower than some of the more flamboyant conservative activists President Donald Trump appointed to the Fifth Circuit.
The third judge is Judge Carolyn Dineen King, a Jimmy Carter appointee.
Nothing from nothing is nothing
The plaintiffs’ arguments in Texas are frivolous. They hinge on the notion that, when Congress repealed a single provision of the Affordable Care Act in 2017, it actually wiped out the entire law.
To explain, as originally enacted in 2010, Obamacare requires most Americans to either carry health insurance or pay higher income taxes — a provision known as the law’s “individual mandate.” The Supreme Court upheld this provision as a valid exercise of Congress’ power to tax.
Trump’s 2017 tax law effectively repealed the individual mandate by reducing the amount of taxes charged under the individual mandate to zero dollars. The Texas plaintiffs argue that this makes the now-useless mandate unconstitutional, because it no longer functions are a true tax.
That’s a plausible argument, but so what? Again, the post-2017 mandate does absolutely nothing. So the question of whether or not it is constitutional is purely academic. Indeed, federal courts don’t even have jurisdiction to hear a case challenging a law that does nothing.
The reason why is a requirement known as “standing.” In order to have standing to challenge a law in federal court, a plaintiff must show that they’ve been injured in some way by that law. But the specific provision of law being challenged in Texas — the empty husk of the individual mandate — does nothing and injures no one. So no one should have standing to challenge it.
The Republican judge who struck down Obamacare, Reed O’Connor, waved over this standing requirement in his opinion. He also imposed a draconian remedy after he determined that the nothingburger mandate is unconstitutional.
When a court strikes down part of a statute, it often must ask whether other, constitutional parts of that statute must fall along with the part that was struck down — an inquiry known as “severability.” Severability is a speculative inquiry. It asks which hypothetical law Congress would have enacted if it had known that one particular provision was invalid.
But such speculation is unnecessary in Texas, because Congress already answered this question. 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.
Thus, even if you assume that the zeroed-out mandate is unconstitutional, we already know that Congress would have preferred for the rest of the law to stand. That’s because Congress effectively repealed the individual mandate while allowing the rest of the law to stand.
O’Connor, moreover, ignored the Supreme Court’s command in Murphy v. National Collegiate Athletic Association that judges should be very reluctant to strike down constitutional provisions of a law after they find that a provision of that law is unconstitutional. “In order for other . . . provisions to fall,” Justice Samuel Alito wrote for the court in Murphy, “it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”
So Texas should be an easy case. The Fifth Circuit should toss the case because no federal court has jurisdiction to hear it. And even if they ignore the standing requirement, striking down the entire law is a betrayal of Murphy and a willful denial of what Congress did in 2017.
The question looming over Texas, however, is whether either Elrod or Engelhardt will set aside their partisan interests in favor of the rule of law. The best predictor of how a judge will rule in an Obamacare case is not what the law actually says, it’s the partisan affiliation of the judge. As a 2014 report by the Washington Times determined, “Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.”
If they ultimately vote to place their political views before the law, Elrod and Engelhardt threaten tens of thousands of innocent lives. And the fate of those lives will likely rest, once again, in Chief Justice John Roberts’ hands.