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Texas Judge Tried To Dismantle Obamacare But Got Slapped Down By The Justice System



Arguably, one of the very best known and most significant legacies of the presidency of former President Barack Obama is that of Obamacare. His universal health insurance policy, which even bears his name, was a slap in the face for neoliberalism and the GOP, finally taking some power away from the greedy corporations and giving millions of people previously unattainable access to healthcare.

Since President Donald Trump took office nearly two years ago (and, indeed, long before then too) he has, as you might expect, utterly hated Obamacare, and he has not been quiet about it. Socialist policies like this go against the fundamentals of his worldview: he hates the idea of the government being used to actually help people. As a result, he has repeatedly tried to repeal the Obamacare bill, his efforts becoming more and more desperate and ultimately failing, resulting in massive embarrassment for his administration.

Not to worry, though, because a rogue Republican judge from Texas is about to swoop in to the rescue and save the capitalists. Judge Reed O’Connor famously implemented a decision which essentially destroyed the entire Affordable Care Act, or at least he tried to. Now, the Texas federal judge is desperately trying to finalize the ruling, and is doing so with a huge amount of enthusiasm. He wrote an enormous thirty pages and a colossal 78 footnotes all about why he is right and everyone else is wrong, totally unnecessarily. Thankfully, some actual experts were on hand to set the record straight. Slate reports:

His order should’ve been about three pages, acknowledging the need for a temporary reprieve while restating his belief that the law must eventually go down. Instead, O’Connor embarked upon a bizarre screed regurgitating his initial ruling and then doubling down on its weakest points. The judge appeared eager to prove his critics wrong. He wound up digging himself further into a hole.

The fundamental problem with O’Connor’s theory of the case is that it makes no sense. Under the doctrine of severability, a court must lop off the provision of a statute that violates the Constitution. But it must leave the rest intact, unless Congress did not intend for the law to operate without the unlawful section. O’Connor held that Congress never wanted the law to operate without the individual mandate because it described the mandate as “essential” three times when it first passed the ACA. Since Congress considered the mandate “essential,” O’Connor wrote, it is inseverable. And the remainder of the law—from nondiscrimination rules to Medicaid expansion—cannot be allowed to function without it.

This is a crackpot argument. The Congress that passed the ACA in 2010 may indeed have considered the mandate to be essential. But the Congress that zeroed out the mandate obviously did not. By reducing the mandate to $0 but keeping the rest of the law, the 2017 Congress evinced its belief that a financial penalty is not an essential provision of the ACA. As Jonathan Adler explained in Reason, “It is simply nonsensical to rely upon the 2010 Congress’s findings to make judgments about the law as subsequently amended in 2017.” By doing so, O’Connor declared that the 2017 Congress was legally prohibited from amending the law based on its own implicit findings about severability because the 2010 Congress had already spoken definitively on the matter. That is an astonishing usurpation of legislative authority by a court.

Yet in his Sunday order, O’Connor framed his decision as a modest one. “The 2017 Congress’s ‘decision’ to not repeal the remainder of the ACA,” the judge wrote, “was not a ‘decision’ that supports an inference of severability intent.” Rather, “it was a consequence of [the mandate being zeroed out] as part of the budget and reconciliation process.” In other words, Congress killed the penalty because it didn’t have the votes to do more damage to the ACA—but was actually secretly voting to render the whole law unconstitutional. Through O’Connor’s looking glass, that means “the 2017 Congress demonstrated no legislative intent to leave the ACA intact.” As a result, the courts must follow the 2010 Congress’ ostensible wishes and obliterate the entire law, not just the hollowed-out mandate. Any conclusion to the contrary, O’Connor explained, “would represent a breathtaking conception of the judicial power.”

What? This gibberish boggles the mind. It gets worse when read in tandem with O’Connor’s 78 bloated footnotes, which include digressions on St. Thomas Aquinas, “secular natural law,” the Emoluments Clause litigation, Marbury v. Madison, the Ninth Amendment, and a book review by one Brett Kavanaugh. But the weirdest tangent arrives when O’Connor throws in a statement made by Justice Anthony Kennedy during oral arguments in the first Obamacare case. Kennedy dissented from that decision, yet O’Connor cites his jibe from the bench as if it carries the force of the law. There could be no clearer indication that the judge is living in a Fox News fantasy world.

The Supreme Court will almost certainly reverse O’Connor, if the case even gets that far; there is a good chance that the 5th U.S. Circuit Court of Appeals will uphold the ACA and SCOTUS will decline to hear this frivolous case. O’Connor’s Sunday order illustrates that the judge really isn’t in on the joke: Unlike the partisan state attorneys general who launched this litigation for political points, O’Connor seems to believe in his heart that Congress accidentally killed the ACA in 2017. It is sad to watch a federal judge descend into such fallacious delusions.

Mercifully, we do live under a government system that actually has some checks and balances, so when this inevitably ends up at the Supreme Court, it is pretty much guaranteed to be overturned. Still, it is staggering that people like this who are so overtly political and staggeringly ignorant can actually be judges with this kind of power in our country.





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