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An activist judge rules Obamacare unconstitutional

After 70 cases, opponents of the health law finally find a court that agrees with them


Terry H. Schwadron
December 21, 2018 10:00AM (UTC)
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What? Obamacare is now unconstitutional, said one Texas federal judge in a summary ruling because the Republican Congress had stopped its central feature — the individual mandate or “tax” — as the Supreme Court had ruled in 2012 and 2015?

The kindest thing one can say about this singular ruling – 70 cases have resulted in upholding the law – is that “No matter how (Judge Reed) O’Connor ruled, legal experts have been forecasting that the Texas case would be appealed and could well place the law again before the high court, giving its conservative newest members (Justices Neil A. Gorsuch and Brett M. Kavanaugh) a first opportunity to take part.

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Much as with abortion-related issues, conservative forces have launched case after case challenging different provisions of the Affordable Care Act in hopes that one would finally take it back to the Supreme Court to recognize the error of its ways. But the logic of this one reads like a twisted attempt to look at the issue upside down.

Jonathan H. Adler and Abbe R. Gluck, lawyers on opposing sides of the ACA cases in 2012 and 2015 argued in a joint New York Times op-ed that this ruling was poorly thought through and “an exercise in raw judicial power.”

This problem is partisan: This was a lawsuit brought by Republican attorneys general and virtually undefended by a Republican Justice Department about a law that a Republican Congress has undercut and risks pre-existing health coverage Republican candidates said they supported during the November campaigns.

In the opinion’s logic, ACA, as reviewed by the Supremes, included a “tax,” the individual mandate that requires that all contribute to the health system, much like drivers must have state-mandated collision insurance (a concept that has never been challenged even by the Republican Congress). Then two years ago, the Republican-majority Congress set the tax at zero, effectively eliminating it, and causing instability in the healthcare system. But this judge found in a decision issued after hours on Friday, just a day before the annual signup period closed, that means there is no ACA without the individual mandate and therefore the law is unconstitutional. In his ruling, Judge O’Connor said that the individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’s tax power.”

The judge concluded that this insurance requirement “is essential to and inseverable from the remainder of the ACA.” In doing so, the judge went beyond the administration’s legal position in the case. Justice Department officials contended that many other parts of the law could be considered legally distinct and thus can continue.

Regardless of political point of view, what Americans don’t need right now is chaos in our healthcare delivery systems. We see what happens when such systems fade away – millions go without expensive health care, insurance companies cut coverage, including for pre-existing conditions, hospitals and doctors retreat from offering care, and people get sick and die.

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This should legitimately be a fight about money, not about health. But it never ends up this way.

Republicans have never come up with a substitute for ACA; the chances of bipartisanship on such an issue is near zero. The healthcare issue has become another matter of competing political slogans, not solutions.

Indeed, most Republican candidates insisted during the campaign that they did not want to withdraw protections for pre-existing conditions, but have never devised a way to pay for it. Instead, without those protections, insurers could and are returning to denying coverage to such people or to charging them more. They could also return to charging people more based on their age, gender or profession.

Politically, let’s face it. This timing — and the direction of the opinion — are horrible. The White House cannot lead here: The president and staff are in a hole trying to defend themselves from incoming fire from investigations and can hardly handle even signing the remaining annual budget issues without threatening a government shutdown. The Congress is changing to a restive Democratic House, bristling to fight the administration on all fronts, and the Court is still trying to overcome the hearings that put Kavanaugh in his seat. There is no attorney general, the secretary of health and human services is under fire and there is no agreement on what should or should not be covered by health insurance.

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Instead, Republicans want magic to allow for full coverage wanted by people for no money or requirement to buy insurance. This is nuts.

If this decision itself were enough of a push for a generalized Medicare for All alternative, allowing people by staggered age to buy into a government-funded insurance source, it would be welcome. But recent history — including Trump’s immediate gleeful response that the ACA officially is now unconstitutional — suggests otherwise.

The ruling was over a lawsuit filed this year by a group of Republican governors and state attorneys general. A group of states led by Democrats promised to appeal the decision, which will most likely not have any immediate effect. But it will almost certainly make its way to the Supreme Court. The Justice Department’s response to the case was highly unusual: Though it disagreed with the plaintiffs that the entire law should be struck down, it declined this year to defend not just the individual mandate, but the law’s provisions that protect people with pre-existing conditions. That prompted a coalition of 16 states and the District of Columbia, led by California, to intervene and defend the law.

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Let’s use this new court ruling to get to a solution.


Terry H. Schwadron

MORE FROM Terry H. Schwadron

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