Affordable Care Act … Redux -dux -dux -dux

December 15, 2018

Affordable Care Act … Redux -dux -dux -dux

affordable care act
Mark Rubin

Just when you thought it was safe …” it’s not! Late on Friday, December 14,2018, U.S. District Judge Reed O’Connor issued a 55-page Memorandum Opinion and Order in Texas v. United States, Case No. 4:18-cv-00167-O, filed in the District Court for the Northern District of Texas.

Texas, along with 19 other states, sought a finding that, with the elimination of the penalty for failing to purchase health insurance, the ACA aka Obamacare violates the U.S. Constitution. The argument? Here it is:

  • In NFIB v. Sebelius, Nos. 11-393, -398, and -400, a bare majority of the U.S.Supreme Court held that because the ACA regulated inactivity—the decision to not buy health insurance—Congress exceeded its power under the Commerce Clause in the U.S. Constitution. Per the majority, Congress can only regulate activity, andnot buying insurance is not activity.
  • A bare majority, led by Chief Justice John Roberts, upheld the law because the penalty for not buying insurance constituted a tax, name aside.
  • In 2017 Congress eliminated the penalty, leaving the mandate to purchase insurance unenforceable.
  • Without the tax, nothing holds the insurance aspectsof the law—coverage until age 26, no pre-existing condition underwriting or limitations, etc.—untethered to any part of the Constitution.
  • The rest of the law—Medicaid, requirements for restaurant nutrition information, pilot programs, etc—unseverable.

The outcome? Judge O’Connor granted summary judgment to the states and the limited number of individual plaintiffs. Law stricken.

I read the entire 55-page order. It’s befuddling. In NFIB the issue involved the right to force people to buy insurance, by penalizing them for passing. Today, effectively, that requirement does not exist. How does Judge O’Connor deal with that fact? He notes several times that the government argued in NFIB that, without an enforceable mandate, the ACA doesn’t work. Ergo, with no enforceable mandate, the law doesn’t work, and must be tossed. Completely, for Judge O’Connor believes there is no way to know whether Congress might have passed any part of the law if it did not pass all of it.

You might think insurers advanced this case, as the mandate was the trade-off for covering those among us—your truly, included—with pre-existing conditions. You’d be wrong, though, for the plaintiffs are 20 states (representedby their respective Republican Attorneys General), Maine (acting through its R Governor, Paul LePage), and a couple of Texans. No insurers. No business groups. No one with a discernable interest in the issue.

Their beef? Who knows, for nothing about the ACA circa 2018 adversely affects these states or their citizens.

Truth be told, we I think I know why this suit came along. No “blankety-blank” president will leave people better off than they were. We—good, regular Americans—need to stand up for what matters: making sure no one pays one thing dime on account of Them. The Other.

As most readers know, I practice law. Lawyers must respect the judiciary, so I must be careful here. That said, Judge O’Connor’s decisions reads: Nasty. Churlish. Triumphal. Clearly, he believes he reached the right result, but his decision reads like one party’s brief, and not like a decision I’d expect from a federal judge.

So here we are. President Donald Trump hailed the decision, tweeting:

Wow, but not surprisingly, ObamaCare was just ruled UNCONSTITUTIONAL by a highly respected judge in Texas. Great News for America!

He went on to call for Congress to “pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions.” Because the Rs have been so successful for eight years in coming up with an alternative.

Candidly, cases like this one leave me disgusted with the legal system. We have an essential aspect of American life, and smart lawyers can tie stuff up for years, leaving real people with real concerns uncertain. You’d think, in the richest nation this world has ever seen the likes of, we’d know how to make sure everyone gets access to health care. Right? Right?

P.S. Judge O’Connor is the only District Court judge in Wichita Falls, and is the only active duty District Court judge who sits in Ft. Worth. No forum shopping concerns from POTUS. I guess that stuff only applies to the Ninth Circuit.

3 Responses to Affordable Care Act … Redux -dux -dux -dux

  • A couple of other points: our AG Brnovich is a plaintiff in the case — and the same judge struck down the Indian Child Welfare Act a few months ago. The ICWA ruling was stayed by the Fifth Circuit pending appeal — and I expect the same ruling in the ACA case.

  • P.S. I have a sense that the yahoos who won this case got their shiny new X-mas toy … and will be clueless about the consequences.

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