Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A Federal District Judge Seems Determined to Strike Down the Affordable Care Act
To enter the Fort Worth Courtroom of Judge Reed O’Connor on September 5, 2018, was to leave the real world. The Affordable Care Act was once again on trial. At stake was access to health care for the 20 million Americans who have gained coverage through the ACA, affordable coverage for 133 million Americans with preexisting conditions, and preventive services coverage for 44 million Medicare beneficiaries.
But the devastating consequences of his potential decision in the case before him were of no interest to Judge O’Connor, who showed no sign of having read the amicus briefs filed by virtually every stakeholder in the American healthcare system—doctors, hospitals, insurers, patient groups, consumer organizations, small businesses, older Americans, as well as numerous health economists and public health experts--demonstrating those consequences. He also showed absolutely no interest in the announced intentions of the Senators who had voted for the amendment to the ACA that had provoked the lawsuit.
The case had been brought by Texas and Republican attorneys general and governors representing twenty states, and they went first in the oral arguments.
They contended that:
·the Supreme Court had held in 2012 that Congress could not constitutionally require people to have health insurance but upheld the ACA’s individual mandate as a tax;
·in 2017 Congress reduced the tax to zero for 2019;
·the mandate is thus now unconstitutional; and
·without the mandate, the entire ACA collapses.
An attorney representing two individual plaintiffs came next, asserting that his clients feel obliged to buy insurance because the law says they “shall,” do so, even though the Supreme Court held the mandate only required some uninsured people to pay a tax, and that tax is now 0.
An attorney representing the United States argued third. The Department of Justice had surprised everyone in June by agreeing with Texas that the mandate was unconstitutional and asserting that the ACA’s provisions that guaranteed access to affordable coverage for people with preexisting conditions had to be invalidated. But in the courtroom the DOJ seemed to be having second thoughts, begging the court not to eliminate preexisting condition protections immediately and not to rule on the case until after the 2019 open enrollment period ends (incidentally, after the midterm elections). The DOJ argued that an immediate injunction could “cause chaos in the insurance markets” and that adjusting to an insurance market without the mandate would be a “multiyear” process.
Finally, two attorneys from California, which along with 16 other Democratic states is defending the ACA, had their turn, contending that the mandate continues to be a valid tax, but more importantly, that the mandate is no longer in any way essential to the continued stability of that market. They pointed to strong evidence that the Senate did not intend to undermine any other provision of the ACA in zeroing out the mandate tax. California demonstrated that granting an injunction would have a devastating effect on millions of Americans and on America’s health care system, while refusing an injunction would not harm the plaintiffs in any way.
But none of this was of any interest to Judge O’Connor. Rather he questioned the attorneys for the next hour trying to elicit support for the plaintiffs’ arguments. Doesn’t the ACA still say people “shall” have coverage? Didn’t Congress by zeroing out the tax in 2017 remove the one justification the Supreme Court found for finding the mandate constitutional? Don’t the “findings” in the mandate section of the original ACA say that the mandate is “essential” to creating markets where preexisting conditions could be covered? (He ignored powerful evidence that the finding was wrong) Didn’t the 2017 Congress that adopted the Tax Cut bill leave those findings in place? (Judge O’Connor bizarrely suggested that Congress zeroed out the tax assuming that he would subsequently invalidate the ACA based on the tax cut bill.) Didn’t the dissent in the earlier Supreme Court case establish that once the mandate disappears, the whole ACA collapses? Can’t the court simply recite the magic formula proposed by the plaintiffs and make the ACA disappear?
In the near future Judge O’Connor will decide whether to invalidate the ACA or its preexisting condition protections. His decision will surely be appealed to the Fifth Circuit, perhaps the country’s most conservative federal appellate court. From there it may go the Supreme Court.
At some point, a court should ask the really important questions: are the plaintiffs really injured by a $0 tax? What devastating injuries would patients, providers, and states suffer if the ACA is invalidated? Did anyone in Congress intend to repeal the ACA when they voted to zero out the mandate tax? Should an unelected federal judge do what the elected representatives of the people have repeatedly refused to do? None of these questions interested Judge O’Connor in the least.
Timothy Jost is Emeritus Professor at Washington and Lee University School of Law. You can reach him by e-mail at jostt at wlu.edu