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I hate Obamacare so much that it is possible that I wrote more words criticizing him over the last ten years than anyone alive. I have supported many previous legal efforts against the legislation and its implementation. In the fall of 2012, after the Supreme Court had confirmed Obamacare, my Halloween costume represented John Roberts becoming a chicken. If Congress canceled all Obamacare tomorrow, I would have a party. Despite my political preferences, I would say that the latest decision of US District Court Judge Reed O. Connor of Texas, declaring Obamacare unconstitutional, is an infringement of the rule of law.
For those who do not yet know, this case, Texas v. Azar was filed by 20 Republican states. They argue that since the individual warrant had been upheld by the Supreme Court as a tax, when the Republican tax law had reduced the penalties to zero, it had removed the constitutional justification of the warrant. In its decision, O & # 39; Connor not only concurred with this proposal, but further decided that the individual warrant could not be separated from the rest of Obamacare and concluded that, therefore, it should be set aside in its entirety.
The opinion, writes libertarian law professor Jonathan Adler, intellectual architect of a major challenge launched by the Supreme Court in implementing Obamacare's grants, "is, to many respects, the conservative equivalent of so-called judicial opinions that have been adopted questionable legal arguments deployed to subvert wrong policies of the Trump administration. "
So, what about of the decision? Basically, there are three levels of problems. First, one may wonder why states would have the right to sue. Secondly, it is difficult to see why Congress would eliminate the sanctions by making it unconstitutional. Third, even if one and two are established, it is impossible to see how the mandate can be considered inseparable from Obamacare after the Congress acted to separate it.
Let's start with the standing position. In court, regardless of the potential merits of a case, the complainants must first establish that they have locus standi, which requires them to show that they are aggrieved by the impugned action. In this case, there is no penalty to go uninsured, so what is the injury? To work around this problem, O Connor considers the warrant as a separate requirement of the penalty enforcement mechanism. He warns against "the assumption that individual claimants are not required to respect their individual mandate". But there is no hypothesis about it.
In fact, as I noted when the lawsuit was resumed in February, in the decision NFIB v. Sebelius of Roberts, he decided that an uninsured person with the penalty but paying the penalty would be fully compliant. "While the individual mandate clearly aims to induce the purchase of health insurance, it is not necessary to read it to declare that non-compliance with this obligation is illegal," wrote Chief Justice. "Neither the law nor any other law assigns negative legal consequences to not taking out health insurance, if it is not to require payment to the IRS The government agrees with this reading, confirming that if someone chooses to pay rather than get health insurance, he has fully complied with the law. "[19659002] Whatever objections I may have had about Roberts' decision at the time, the reality is that as a judge of a lower court, O & # 39; Connor is bound by what the Supreme Court ruled at the time. And O & # 39; Connor in no way conflicts with the fact that the Supreme Court has clearly said that without the tax, the fact of not being insured is of no legal consequence.
By going beyond mere standing, it is also difficult to understand why the elimination of the tax would render the mandate unconstitutional. Over the years, there have been debates about whether a sufficiently large increase in the mandate fee could make it unconstitutional. If, for example, the tax was set at a level such that it cost the same price as the purchase of health insurance, it could be considered a legal obligation without realistic possibility of it. # 39; avoid. This could justify a review of the Roberts decision. But in this case, Congress did the opposite. He has weakened the power of the mandate to the point that he has absolutely no power. If the Supreme Court has ruled that a tax-imposed warrant is lawful, it is difficult to see how a significantly weaker warrant would not be allowed.
Once O & # 39; Connor has finished bypassing the main arguments against his findings as to the locus standi and constitutionality of the warrant, he then proceeds to his most absurd decision: that if the warrant is unconstitutional, the the rest of the law must also fall because it is inseparable.
The analysis of divisibility has partly become a debate on the question of whether it is relevant to consider the actions of Congress in 2010, which adopted Obamacare, or that of 2017 , which repealed the penalties of the warrant. If we look in 2017, it is difficult to say that the mandate can not be separated from the rest of the law. Congress did exactly that by eliminating the sanctions.
O & # 39; Connor concludes that the 2017 tax law was passed through reconciliation and that Congress had few options. Examining the intention of divisibility was a "madman's task". But it's ridiculous. Republicans knew that they could not easily repeal other Obamacare regulations in the tax bill through a reconciliation. They could have chosen not to touch the mandate penalties, but they did.
Absolutely, O & # 39; Connor argues that "the 2017 Congress, just like the 2010 Congress, aimed to preserve the individual mandate, because the 2017 Congress, just like the 2010 Congress, knew that provisions are essential for the [Affordable Care Act] ". For starters, it's hilarious to rank the Republicans, who have fought this mandate for nearly 10 years, as thinking that the underlying individual mandate is so important to preserve. Moreover, the idea that if they thought it was so important to preserve, that they would choose to keep it only on paper, even by depriving it of all power, is crazy. Nor does it consider that Republicans said exactly the opposite.
Here is how Senate Majority Leader Mitch McConnell described the situation just before the Senate passed tax legislation: "The report of the conference will also abolish the punitive imposition of individual mandate at the heart. Obamacare. " Here is the Republican in the Senate who says literally: We want to abolish the sanctions because we consider them as important for Obamacare. And yet, O Connor says that they wanted to preserve the mandate because they saw it as essential.
Law professor Nicholas Bagley (objective supporter of Obamacare) pointed out that, even though the 2010 mandate considered it essential, "the 2010 mandate Congress said a penalty was essential," said This conclusion is irrelevant to a warrant that does not include such a penalty. "
I can understand more than anyone else the desire to get rid of Obamacare. But the Supreme Court has already rendered its decision and the lower courts are therefore bound by this decision. As I have said for years, including in a book on the subject, the solution is for Republicans to unite around a reasonable free market alternative and to repeal Obamacare through legislation. What is happening here is an effort to bypass the normal process and implement the political preferences through judicial activism.
Embracing unelected judges by using weak reasoning to impose their political preferences on the country at the very moment they lead to the Conservatives' expected results would cause considerable long-term harm to all that is dear to them.
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