Balkinization: Obamacare, Separation of Powers, and Accountability

Obamacare, Separation of Powers, and Accountability

Abbe Gluck

Yesterday, the Fifth Circuit finally issued a decision Texas v. U.S, the latest existential challenge to the Affordable Care Act---which many forget was entirely struck off the books last year by a federal judge in Texas known for his anti-ACA rulings. Rather than reverse the lower court outright, however, the Fifth Circuit sent it back down, effectively kicking the case--and the Trump Administration's accountability for its efforts to destroy the law--until after the election, just as the Administration had hoped.

The opinion is important because it correctly chides the lower court for ignoring the position of the 2017 Congress when the court decided that the entire ACA must fall simply because Congress zeroed out the penalty that was to enforce the ACA's insurance-purchase requirement. The case also illustrates the very important role that severability doctrine plays in separation of powers-- the lower court substituted its own policy judgment about the ACA for the clearly expressed position of the 2017 Congress (a position notably taken after more than 60 failed attempts to repeal the law) that the ACA should remain in place. I have more to say about it in this op-ed, just published in the NY Times, which begins as follows.

Who will Americans blame when they lose their health care?

Almost exactly a year ago, a federal judge in Texas who is widely known for his anti-Affordable Care Act rulings wiped the entire health care law off the books. That’s right. Not only the quality-control measures and the requirements of coverage for pre-existing-conditions and that young adults can remain on their parents’ plans but also the Medicaid expansion, Medicare’s new drug benefits and countless other reforms. Many Americans don’t realize how many benefits they currently enjoy come from the Affordable Care Act, which has given tens of millions access to health care over the past decade.

On Wednesday, the federal appellate court reviewing the case finally issued its decision. It refused to reverse the lower court outright. Instead, it did President Trump and Republicans a big favor and sent the case back down to the same judge and in so doing all but ensured that there would be no ruling on the law’s fate until after the 2020 election. The court has enabled Mr. Trump to escape accountability to the voters for his efforts to destroy the law.

More here.

Posted 4:01 PM by Abbe Gluck [link]