A late Friday evening in mid-December — with the midterm elections safely in the rear-view mirror — is not when a public official releases something important that they want to receive a lot of public scrutiny. So it is almost certainly not a coincidence that Texas U.S. District Court Judge Reed O’Connor chose exactly such a moment to release his opinion in Texas v. U.S., holding that the Affordable Care Act was unconstitutional and should be struck down in its entirety.
Should O’Connor’s partisan opinion survive the appellate process, it would not only be a catastrophe for tens of millions of Americans but evidence that Republican courts simply will not allow future Democratic Congresses to govern.
But, on the legal merits, O’Connor’s opinion would need a great deal of work to rise to the level of being shoddy. The basis of his argument is the recent decision by the Republican Congress to remove the tax penalty for people who don’t carry health insurance (the so-called “individual mandate”). O’Connor argues that, because the mandate no longer carries a tax penalty, it is unconstitutional, based on the idea that, when Chief Justice John Roberts upheld most of the Affordable Care Act in the 2012 case NFIB v. Sebelius, the mandate was upheld as a valid exercise of the federal taxing power.
And he then argues that the mandate cannot be severed from the rest of the ACA, so that the entire statute — including the Medicaid expansion, which the mandate doesn’t affect at all — is unconstitutional.
If you think that this doesn’t make any sense, you’re right. First of all, as amended by Congress, there is no longer any “mandate” to purchase health insurance — consumers have the choice to carry insurance or pay... nothing. And the argument that, if the non-actually-existent “mandate” is unconstitutional, the entire bill must fall is even worse. According to O’Connor, Congress “intended” to preserve the original mandate because “knew that provision is essential to the ACA.”
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As Nicholas Bagley of the University of Michigan Law School observes, “[o]n no account did Congress in 2017 “intend to preserve” the individual mandate. It meant to get rid of the loathed mandate — and it did, by eliminating the penalty that gave it force and effect.”
A legal opinion premised on the idea that Congress could not possibly have intended to do what it literally did seems unlikely to stand up. And indeed, liberal and many conservative legal experts have assailed the ruling.
Jonathan Adler, the libertarian legal scholar who was the architect of an earlier legal challenge to the ACA, described O’Connor’s ruling as “unlawful.” Does that mean that the decision has no chance of being upheld? While it’s unlikely to survive, that’s going too far. The 5th Circuit Court of Appeals, where the case is headed next, is the nation’s most conservative.
And while Chief Justice Roberts is unlikely to buy the third argument against the ACA after rejecting the first two, since the argument is tailored specifically to his argument that the mandate is constitutional only under the taxing power, it’s possible that he might. And remember that the liberal Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg are 80 and 85, respectively, only two years into President Donald Trump’s term; by the time that this gets to the court it’s not inconceivable that Roberts’s vote will be unnecessary to strike down the ACA.
Former President Barack Obama reassured people benefiting from his signature legislative achievement: “the law remains in place and will likely stay that way.” Hopefully he is correct.
But the improbable — but not impossible — scenario in which the ACA is struck down by the Supreme Court would be catastrophic to two groups of people: The tens of millions of people who would find themselves without health insurance, and Republicans.
The argument that striking down the ACA is bad for the former is controversial only if you think that plenty of unnecessary deaths, suffering, and financial ruin are OK. And Republicans, who suffered huge losses in the 2018 midterms in part because of their extremely unpopular attempts to repeal the ACA, would own this outcome. Plus, it’s essentially impossible to imagine a significant fix that would be acceptable to both a Republican-controlled Senate and a Democratic-controlled House.
Thus, the end of the ACA would be a disaster for Trump and down-ballot Republicans. One crucial factor behind Trump’s victory was that unpopular Republican positions on issues like health care were given very little coverage in the 2016 campaign, which was dominated by Trump’s insults and Hillary Clinton’s email server. That wouldn’t happen again if the courts decided to take healthcare away from millions of people, and that is one reason that Republican courts might be reluctant to go along with O’Sullivan.
Indeed, it might be tempting for Democrats to hope that a Republican Supreme Court does kill the ACA, which would damage the GOP and make clear to everyone that they simply have no answers on healthcare that the American people find palatable — allowing Democrats to simply replace the ACA with Medicare For All or something similar.
A tempting thought, but wrong. Even if Democrats used a healthcare-based wave to defeat Trump and retain the House, it would be optimistic to think that Democrats could get 51 seats in the Senate. If Republicans maintain control of the Senate, no substantial ACA replacement would be possible but, even if they don’t, getting 50 Democratic Senators to agree to eliminate the filibuster in order to effectively eliminate the American health insurance industry with one vote to spare is not — to put it mildly — something you can count on.
And a court that would strike down the ACA based on this silly theory may well strike down Medicare For All.
The next Democratic candidate for president will probably run on Medicare For All, and true universal coverage should indeed be the long-term Democratic goal. But it would be easier and better to use the ACA as a base to build something better, rather than cheering at Republicans blow it up.