Obamacare repeal is back, and it’s dumber than ever

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The sun rises. The sun sets. Young people fall in love. Taxes are paid. People die. And Republicans make newer, dumber attempts to repeal Obamacare.

It’s an endless, unbreakable cycle of meritless lawsuits, half-baked legislation, and disingenuous political rhetoric. It would be hilarious if hundreds of thousands of lives weren’t at stake.

The latest effort to kill Obamacare is a lawsuit brought by 20 Republican governors and attorneys general alleging that, since Congress recently decided to deactivate a single provision of the law, the entire law must be taken down. It is a risible, insulting legal theory that several conservative legal observers have already described as incomprehensible and “too clever by half.”

Nonetheless, as anyone familiar with Obamacare’s history will recognize, the fact that Texas v. United States relies on a baffling legal argument provides no shield from partisan judges. By the time this case is over, dozens — perhaps even hundreds — of the nation’s smartest lawyers and health policy scholars are likely to be dragged into a fight to defend the Affordable Care Act. As many as three Supreme Court justices are likely to vote to repeal the law. Health care markets across the country could be rocked when a single Republican judge decides to enjoin the entire law. And millions of Americans will live in fear, unsure whether the health coverage they need to survive will still be around tomorrow.

“Gotcha” litigation

The legal theory underlying Texas is difficult to parse, but it boils down to an elaborate game of “gotcha.”

In 2010, Congress enacted the Patient Protection and Affordable Care Act. Among other things, the law contained three interlocking provisions — insurance regulations requiring insurers to cover people with preexisting conditions, tax credits helping individuals pay for insurance, and the “individual mandate,” which requires most people to either carry insurance or pay higher income taxes.

The purpose of the mandate is to prevent people from waiting until they get sick to buy insurance, thereby draining money out of an insurance pool that they haven’t paid into, and potentially endangering the insurance market. According to the Affordable Care Act, the mandate is “essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.”

Seven years later, Congress reached a different conclusion regarding the individual mandate. After multiple failed attempts to repeal large swaths of the Affordable Care Act, the Republican-controlled Congress gave up. It did, however, enact the Tax Cuts and Jobs Act of 2017, which effectively repeals the individual mandate by reducing the tax consequences of failing to obtain insurance to zero.

Thus, while the Democratic Congress that enacted Obamacare in 2010 deemed the individual mandate to be “essential” to other provisions of the law, the Republican Congress that amended Obamacare in 2017 reached a different conclusion. This is something that elected representatives are permitted to do in a democratic republic.

But the crux of the legal arguments in Texas is that the 2010 Congress’ conclusion that the mandate is “essential” is somehow binding on Congress in 2017. Thus, when Congress repealed the individual mandate in 2017, it was required to also repeal the law in its entirety — and because Congress failed to do so in 2017, the Republican elected officials argue in Texas, it is now incumbent upon the courts to do so.

There are so many problems with this legal theory that it is difficult to count them. For one thing, the Supreme Court has repeatedly embraced the “centuries old concept that one legislature may not bind the legislative authority of its successors.” So even if Congress believed in 2010 that an individual mandate is essential to maintaining the law as a whole, a later Congress is allowed to second-guess this judgment.

For another, one of the primary arguments in Texas is that the bulk of Obamacare is “non-severable from the mandate and must be invalidated along with the individual mandate.” But courts generally only inquire into which portions of a law are severable from the remainder when they strike down part of a law themselves. When a court strikes down some but not all of a broader statute, it must make its best guess regarding whether Congress would have preferred for some, all, or none of the remaining provisions to remain in effect. But here there is no need for courts to engage in such speculation here, because Congress has already answered this question.

Congress chose to repeal the individual mandate without repealing any other provisions of the law. Indeed, when Congress attempted to repeal more of the Affordable Care Act, it was unable to do so. So Texas effectively asks the courts to second-guess Congress’ answer to a question that lawmakers spent most of a year debating, and that Congress eventually decided quite definitively.

A man on the inside

In a non-partisan judiciary, Texas would have no chance. But the Republican officials behind this lawsuit also have an ace up their sleeve. The case will be heard by Judge Reed O’Connor — a judge with a history of handing down dubious legal decisions and enforcing them with nationwide injunctions.

Consider O’Connor’s actions in March of 2015, for example, when marriage discrimination against same-sex couples was clearly on its last legs.

At this point, multiple courts had held that states may not engage in such discrimination. The Supreme Court had not only agreed to take up this issue, but had also refused to stay lower court decisions requiring states to allow same-sex couples to marry. As Justice Clarence Thomas wrote in a prescient dissent, the Court’s decision to allow same-sex marriages to proceed “may well be seen as a signal of the Court’s intended resolution of that question.”

Nevertheless, O’Connor picked that moment to issue an opinion halting a Labor Department rule permitting many same-sex married couples to take time off to take time off work to care for their ailing spouse. He did so, moreover, despite the fact that he had to find that opponents of marriage equality had a “substantial likelihood of success on the merits” in their challenge the equal rights for same-sex couples. No judge who had paid the least bit of attention to the Supreme Court’s pronouncements on marriage equality could reach such a conclusion in March of 2015.

O’Connor later halted an Obama administration guidance advising schools to permit trans student to use bathrooms that align with their gender identity.

So, while the 20 Republican officials behind Texas don’t have the law on their side, they may have a very partisan judge in their corner — and in the short term, that’s all they need. O’Connor could very well issue a nationwide injunction halting the entire Affordable Care Act, and should he do so, the Trump administration will undoubtedly be eager to comply with that injunction.

Though such an injunction is unlikely to survive review by the Supreme Court — six justices signaled very loudly in 2015’s King v. Burwell that they were sick of political litigation invoking dubious legal theories to attack Obamacare — O’Connor could cause a great deal of chaos as his decision is winding through the courts. And millions of people could potentially lose health coverage, at least for a brief period.

This is the song that never ends

There is a well-oiled machine of lawyers, activists, policy experts, and public intellectuals that will click into place when Obamacare is threatened. It saved the law from two encounters with the Supreme Court, a government shutdown, a barrage of repeal bills, and from Donald Trump. There is little doubt that it will be able to save the law from these Republican officials.

But what a waste of talent. Dozens of the best legal and health policy minds in the country may need to devote the next year of their lives to pushing back on this nonsense. They will do so because, if they should falter, tens of thousands of people will die every year without access to health coverage. But imagine what these experts could accomplish if they didn’t have to spend year after year fighting disingenuous attacks on the Affordable Care Act.

And then there are the state officials behind this litigation — officials who could send the health system into chaos and who will ultimately bill the cost of this lawsuit to their states’ taxpayers. And for what? So they can send out another press release bragging about how they are sticking it to Obamacare?

Meanwhile, millions of Americans could spend another year living in fear, wondering if the only thing standing between them and a needless death from a curable condition will become a casualty in a political war.

This is an unforgivable way to treat your fellow human beings. And it is made all the more egregious by the fact that the officials behind the Texas litigation were elected to serve the very people whom they will torment with this suit.

Now it’s up to Judge O’Connor. He has the power to nip his lawsuit in the bud, to save millions of Americans from months of needless anxiety, and, potentially, to rehabilitate his reputation in the process. He can reject a legal theory that is barely comprehensible, or he can serve his political party.


Reposted from Think Progress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.