Yesterday, a federal district judge in Texas ruled that the individual mandate in ObamaCare–that is, making people buy a product they neither want nor need, and might not be able to afford, or fining them if they refuse–is unconstitutional. (See my colleague Sarah Lee’s post on the subject for a bit different take.) He could have said unconscionable, too, and made it even more correct. But, as he shut down the government acting as Luca Brasi for the insurance industry, he also declared that the individual mandate was not severable from ObamaCare, in general, and, therefore, the whole law was unconstitutional.
BREAKING: Federal judge in Texas strikes down the Affordable Care Act pic.twitter.com/lDyAansAB0
— Peter Sullivan (@PeterSullivan4) December 15, 2018
U.S. District Court Judge Reed O’Connor, a George W. Bush appointee in Fort Worth, Texas, issued the decision gutting the law law in response to a lawsuit from 20 conservative-led states that sought to have the Affordable Care Act tossed out. They successfully argued that the mandate penalty was a critical linchpin of the law and that without it, the entire frameworks is rendered unconstitutional.
“In sum, the Individual Mandate ‘is so interwoven with [the ACA’s] regulations that they cannot be separated. None of them can stand,’” O’Connor wrote in his decision.
The decision came a little more than 24 hours before the sign-up period for 2019 Obamacare coverage is set to close.
Republicans zeroed out the mandate penalty as part of their 2017 overhaul of the tax code. It’s slated to disappear next year.
The Justice Department took the unusual stance of partially siding with the conservative states seeking to strike down the law. As a result, 16 mostly Democratic-led states intervened in the case to try and save Obamacare. But O’Connor didn’t agree with their argument that by striking the tax penalty but leaving the rest of the federal health care law in place, Congress had clearly indicated its belief that they weren’t inseparable.
(Okay, just to take a quick tour back in time, Chief Justice John Roberts is quite possibly the only guy in the entire nation, other that a handful of reflexive NeverTrumpers who had to jump in to defend his honor, who believes that who appoints judges is not important. Politico certainly thinks it is important enough to mention.)
What does it matter that he was appointed by GW Bush? "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them." https://t.co/K0iMx9aZPB
— Legal Insurrection (@LegInsurrection) December 15, 2018
Great. But does it matter? Probably not.
First, because the judge is a rational man and not like the power-junkies appointed by Obama in the Ninth Circuit, he didn’t impose a nationwide injunction halting the individual mandate. That means the case will progress through the courts. Plus, the Trump administration has stopped the IRS from enforcing the individual mandate so, in the short run, this is a moral victory in the fight against creeping totalitarianism. Secondly, the line-up at the Supreme Court is exactly the same as it was when Roberts, Ginsburg, Breyer, Sotomayor, and Kagan saved ObamaCare in National Federation of Independent Business v. Sebelius. If anything, we may be worse off because Kavanaugh is not looking very much like a conservative firebrand.
Eventually, ObamaCare is going to die under the weight of its own contradictions. It would be a mercy if it could be killed by the courts because it is very obvious the GOP had no intention of doing so…even with the House, the Senate, and the Presidency. But I’d fully expect Roberts to dig in on this and throw good money after bad in order to make his previous decision not look so utterly craven and intellectually bankrupt.
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