Supreme Court to hear a subtle but terrifying threat to Obamacare

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

In a sensible world, Virginia House of Delegates v. Bethune-Hill would have nothing whatsoever to do with the Affordable Care Act. On its surface, Bethune-Hill is a racial gerrymandering case which, the Supreme Court announced on Tuesday, will be heard by the Court for the second time.

Yet Bethune-Hill also presents a difficult issue regarding when non-parties to a federal lawsuit may appeal lower court decisions to a higher authority. And this technical question could have tremendous implications for Obamacare. Depending on how the Supreme Court rules in Bethune-Hill, this seemingly irrelevant gerrymandering dispute could enable the Trump administration to collude with a highly partisan judge to shut down the Affordable Care Act in a bevy of red states.

Who can file an appeal?

Bethune-Hill challenges 12 of Virginia’s state legislative districts, alleging they are unlawful racial gerrymanders. This case was originally filed in 2014, and it’s been through several twists and turns since then. Before Tuesday, the most significant recent development was a lower court decision holding that 11 of these 12 districts are, indeed, unlawful. The lower court ordered Virginia’s legislature to draw new maps by October 30.

Significantly, Virginia’s Democratic Attorney General Mark Herring chose not to appeal that lower court order. Instead, it was the state’s Republican-controlled House of Delegates that sought to overturn the lower court’s decision. The House of Delegates are not a party to this suit, but they were granted “intervenor” status by the lower court — status that allowed them to defend the gerrymandered maps in that court.

There are very serious doubts, however, that the House of Delegates is allowed to appeal this case to the Supreme Court. The Constitution does not permit just anyone to invoke the power of a federal court. Rather, the House of Delegates may only bring this appeal if it was somehow injured by the lower court’s decision. And it is unclear whether a decision ordering the state house’s districts redrawn constitutes such an injury.

Notably, the Supreme Court’s order announcing that it will hear Bethune-Hill asks the parties to file briefs discussing “whether appellants have standing to bring this appeal,” so it appears that the Court itself has serious doubts about whether the state house may appeal the lower court’s order. If the House of Delegates cannot bring this appeal, the lower court’s order stands and the state’s maps must be redrawn.

But what does all of that have to do with Obamacare? The answer to this question involves a partisan lawsuit being heard by a deeply partisan Republican judge. That lawsuit may also present a similar question about who is allowed to appeal a lower court’s order.

The joke lawsuit

If hundreds of thousands of lives weren’t at stake in Texas v. United States, this lawsuit attacking Obamacare would be an absurdist joke. In Texas, a bloc of 20 Republican governors and state attorneys general claim that the entire Affordable Care Act must be struck down because Congress chose to repeal a single provision of the law.

It’s not a very good argument or even a vaguely plausible one (if you want to read a full explanation of the plaintiffs’ arguments in Texas and the many, many problems with those arguments, you can read it here), but the Texas plaintiffs do have one thing going for them. They filed their lawsuit in the Northern District of Texas’ Fort Worth Division, where the only active judge is Judge Reed O’Connor. And O’Connor has a history of handing down dubiously reasoned opinions that implement the Republican Party’s policy preferences.

O’Connor is widely expected to issue an opinion striking down Obamacare any day now. Indeed, O’Connor is perceived as such a reliable partisan that many leading scholars and legal observers suspect that he intentionally delayed his decision until after the midterm elections to avoid stepping on the Republican Party’s campaign messages regarding health care.

Yet, while O’Connor is expected to hand the GOP a victory over people who could die if they lose their health insurance, it’s unclear just how much of a victory he will hand them. And, depending on how the Supreme Court decides Bethune-Hill, O’Connor could potentially hand down an order that strips health care from millions of people — and that cannot be reviewed by any appellate court.

DOJ’s lawlessness

Since the Texas case was filed at the beginning of this year, there have been three developments in this lawsuit worth noting here.

The first is that the Trump administration filed a brief arguing that the Texas plaintiffs should win a partial victory in this suit (that brief reportedly led at least one senior Justice Department attorney to resign in protest). The Trump administration argues that Judge O’Connor should repeal Obamacare’s protections for people with preexisting conditions.

The fact that the Justice Department filed such a brief, moreover, suggests that they may not appeal O’Connor’s order should some or all of Obamacare be struck down.

The second development is that, in no small part due to fears that the Trump administration would refuse to appeal an anti-Obamacare order, 17 states filed their own brief seeking to defend Obamacare. Like the Virginia House of Delegates in Bethune-Hill, these states were granted intervenor status.

The third development is an odd legal brief the Texas plaintiffs filed after these states became intervenors. Among other things, that brief argues that, if O’Connor decides to only strike down the Affordable Care Act’s preexisting conditions provisions, such an order should only apply in the 20 plaintiff states.

On the surface, this seems like an odd argument for the plaintiffs to make — why would a potentially victorious plaintiff tell a judge to limit the scope of their victory? But there is a certain sinister logic to the plaintiffs’ brief when read alongside cases like Bethune-Hill.

The jurisdictional question presented by Bethune-Hill — when an intervenor is allowed to appeal an unfavorable order to a higher court — is not a new one. It came up most recently in Hollingsworth v. Perry, where the Supreme Court held that the anti-LGBTQ activists who spearheaded a ban on same-sex marriage in California were not allowed to appeal a decision striking down that ban.

Recall that the general rule when an intervenor seeks to appeal a lower court decision is that the intervenor must have suffered some sort of injury because of that lower court decision. The Texas plaintiffs’ proposal to limit the scope of O’Connor’s injunction appears to be an effort to prevent the intervenor states from appealing O’Connor’s decision. By insulating the intervenor states from his order, O’Connor may attempt to immunize that order from challenge.

It is an odd kind of democracy where a single, highly partisan judge can be hand-selected by equally partisan plaintiffs to strike down a federal law. It’s an even odder democracy where this judge can manipulate the scope of his order to prevent it from being appealed.

Yet, depending on how the Supreme Court rules in Bethune-Hill, the Court could potentially restrict the right of intervenors to bring appeals to such an extent that O’Connor could get away with such manipulations.

In fairness, in a world where O’Connor’s order cannot be appealed, patients who lose their insurance would file their own lawsuits before less partisan judges, and those judges would almost certainly hold that the Obamacare’s preexisting conditions provisions are still good law. But a world with competing court orders hinging on the whims of partisan judges is not a good world to live in if your life depends on your health insurance — and if the Trump administration is doing everything it can to comply with O’Connor’s order.


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.

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