By Eric Segall
Once upon a time in a small corner of Texas there was a federal trial judge named Reed O’Connor who really, truly hated Barrack Obama and all other things liberal. He ruled several Obama-era policies regarding transgender students unconstitutional, he struck down a federal law prohibiting the interstate transportation of handguns, and he overruled an Obama administration rule barring health care providers from discriminating based on gender identity. Those conservative rulings all came before his tour de force front-page potentially country-changing decision in the aptly named case California v. Texas to invalidate the entire Affordable Care Act (Obamacare) potentially disrupting our entire health insurance and health care systems.
Why would Judge O’Connor do such a drastic thing apart from his obvious desire to both destroy all things Obama and to be elevated to the Fifth Circuit Court of Appeals, otherwise known as the anti-Obama Circuit? The story begins in 2017, when Congress passed an amendment to the ACA eliminating the mandate/tax/penalty (otherwise known as the John Roberts switcheroo) for people who refuse to buy health insurance. At the time, the House was Republican, the Senate was Republican, and the President was Republican. Had they been willing to "go nuclear" to change the Senate rules governing what bills need a supermajority, they could have repealed the entire law, but instead they made one part of the law meaningless and KEPT THE REST (needed all caps because, well you will see).
After the payment of the mandate/tax/penalty went down to zero, 20 red states in February 2018 filed a suit in Judge O’Connor’s district (wonder why) arguing that the mandate/tax/penalty was now unconstitutional, and because the mandate/tax/penalty was now unconstitutional, the entire law, affecting millions of people, should be struck down as unconstitutional. Rumor has it that when Judge O’Connor first heard about the challenge his euphoria level went from 8 (Trump was POTUS) to a perfect 10. His joy reached its zenith in December 2018 when he entered an order invalidating Obamacare--all of it.
The parties to this case are both unusual and somewhat in flux. Two of the original 20 states dropped out after they turned blue, so now there are 18 states challenging the law plus, and this gets funky, the Trump Administration which, despite a legal obligation to defend federal laws, is trying to kill Obamacare and replace it with the GOP super-secret health care plan otherwise known as GOPCare, which will replicate the ACA almost exactly.
The law is being defended by 21 blue states and the blue House of Representatives. There are numerous standing and other jurisdictional issues in the case but we are going to ignore those for reasons that will become clear later. The parties are in flux because, if after the election, red states turn blue or blue states turn red or Joe Biden wins, a lot of things might change. Stay tuned. The oral argument is set for November 10, otherwise known as Amy Coney Barrett day.
On what legal basis did Judge O’Connor decide to alter the way millions of Americans buy health insurance and thus their health care (between 2010 and 2018 the number of non-elderly folks who did not have health insurance decreased by 18 million)? His reasoning went as follows:
1) If the government can do this, it can also make you buy broccoli. No, I jest.
2) In NFIB v. Sibelius, the Court ruled that Congress could not make Americans buy heath insurance using its commerce clause power but Congress could do so through its taxing power. Many liberal law professors thought that this switcheroo was constitutionally legitimate while others like the four conservative Justices other than the Chief and many conservative law professors thought it was a convenient legal manipulation because the required payment was more of a penalty than a tax. Either way, what all of America called a mandate before the case now became a tax.
2) In 2017, Congress made the mandate/tax/penalty zero dollars meaning no one in America is currently being forced by the ACA to buy health insurance.
3) Because the mandate/tax/penalty/ is now zero, the mandate/tax/penalty, instead of just being irrelevant is now unconstitutional because what was once a mandate, then transformed to a tax by the Roberts Switcheroo, is now back to being only a mandate, which is beyond Congress’ powers to impose, and thus is now unconstitutional (even though it is of course not a mandate because it imposes no penalty for non-compliance).
4) Leading to the super big, all important, major important question: can the supposedly unconstitutional mandate/tax/penalty provision be “severed” from the law or does the whole law have to be declared invalid?
and . . .
5) The answer from Judge O’Connor is: Yes, finally, I can do it, I can declare all of Obamacare illegal. Get my Fifth Circuit seat ready!
The case was then appealed to the aforesaid anti-Obama Fifth Circuit, where the judges agreed the mandate/tax/penalty that now does nothing, has no legal effect (and did I mention does nothing?) is in fact unconstitutional, but Judge O’Connor, by focusing on the 2010 version of the ACA instead of the 2017 version, rushed to declare the whole law unconstitutional, and thus the case was remanded to him so he could redo his severability analysis and then declare the whole law invalid again. But wait! The Supreme Court was asked to step in, it did, and as I mentioned, the case is being argued on Amy Coney Barrett day.
If you watched the Supreme charade known by its other name as the Barrett confirmation hearing, and you like your Obamacare health insurance, you are probably very, very scared because most of the Democratic Senators spent their time, not on Barrett’s absurd and fake originalism, but on pretending she will be the key vote to overturn the ACA in the upcoming case. Fear not, however, that is not going to happen.
This entire legal challenge is absurd and guess what, you do not have to believe me or any other liberal egghead, pundit, or politician. Professor Jonathan Adler (of the Federalist Society), he who is otherwise known as the ACA killer, or I should say attempted killer, who from 2010-2015 spent most of his waking hours trying to slay the ACA, has had the integrity to say this about the lawsuit: “I am no fan of the ACA [you don’t say], but I am no fan of this lawsuit either… Indeed, like many other ACA critics, I find the arguments made by the plaintiff states to be quite poor, and I was disappointed to see them embraced by a district court judge and given further credence in a divided opinion of the U.S. Court of Appeals for the Fifth Circuit.”
Professor Adler even joined with his one-time liberal foes Professors Nick Bagley and Abbe Gluck, and another long-time foe of the ACA Professor Ilya Somin of the Antonin Scalia Fake Originalist School of Law, to file an amicus brief in the case telling the Supreme Court that “under the settled approach to severability that this Court has followed consistently for more than 100 years, the question here is not debatable: the mandate is severable from the rest of the ACA. Any other conclusion would be a judicial usurpation of Congress’s lawmaking power.”
Why, you may ask, is this so clear? When the Court strikes down one part of a federal law, it then must decide whether the rest of the law remains or is overturned. This issue is 100%, in every way, I mean all the way down, one of congressional intent: what would Congress have wanted if it had known one part of the law would be rendered invalid?
Judge O’Connor knows this question is one of intent, which is why he focused on the 2010 version of the ACA which, without the mandate/tax/penalty might have been struck down in its entirety by the non-court Court but, and this but is as big as Ohio, the relevant source of intent here is not the 2010 Congress but the 2017 Congress that effectively wiped out the mandate/tax/penalty. And, when we look at that intent, we simply do not have to guess. In the words of the ACA slayer and his co-amici, “Congress unmistakably intended that all provisions of the ACA remain without an enforceable individual mandate, as that is what Congress did.” It really is as simple as that.
Moreover, even apart from these arguments, as Mike and Professor Marty Lederman wrote in an amicus brief, the Court should not even reach the issue of severability because the former mandate/tax/penalty is not unconstitutional. It is just meaningless, gone, kaput, has no legal effect. As they persuasively argue, a federal law that makes no one do anything anywhere, anytime, anyplace, simply cannot be unconstitutional as an invalid use of the commerce power or any other power.
As I mentioned at the outset, there are also some difficult jurisdictional issues in this case, but my prediction is that there will be five Justices to ignore those hard questions and just rule that, of course a Congress that takes out one part of a law but keeps the rest intends … to keep the rest -- or there is nothing unconstitutional in the case to strike down.
Now, you might respond, are you not the guy who says the Court is not a court and the justices are not judges, and they vote their values, regardless of pre-existing law? Yes, that is I. So, of course, anything is possible. But this case is so frivolous, so weak, so ridiculous, that I do not think the partisans on the Court will waste their capital on this nonsense.
The ACA is safe for now, breathe easy America. But remember to tune in next year when yet more legal challenges to the ACA will no doubt come our way.