Bush Judge in Northern Texas Was Go-To Guy to Gut Obamacare

Kartikay Mehrotra and Tom Korosec
Bush Judge in Northern Texas Was Go-To Guy to Gut Obamacare

(Bloomberg) -- When opponents of Obamacare couldn’t kill the law in Washington, they went to a judge in Fort Worth, Texas.

Reed O’Connor, appointed to the federal bench by President George W. Bush, ruled against Barack Obama’s signature health-care law three times, dealing the most serious blow Friday when he declared the entire law unconstitutional and cast uncertainty on insurance coverage for millions of Americans.

While the ruling is sure to be appealed all the way to the U.S. Supreme Court, it’s a remarkable victory for conservatives who fared poorly in other court challenges to the Affordable Care Act and were further frustrated in 2017 when a Republican-led Congress and President Donald Trump couldn’t muster the votes to abolish Obamacare.

It’s also a testament to the resolve of political leaders in Texas, Governor Greg Abbott and Attorney General Ken Paxton, to take on the policies of the former Democratic president. Overall, the Republican-led Lone Star state had mixed results while suing the Obama administration some four dozen times since 2009, but its attacks on Obamacare stand out for their success.

O’Connor is a former federal prosecutor who spent four years prior to his 2007 appointment as a Senate Judiciary Committee staffer working for Republicans Orrin Hatch and John Cornyn.

Critics say that engineering three Obamacare lawsuits to all land with O’Connor is a classic example of shopping for a judge to get a favorable result. But Democrats and liberals have often been lambasted for the same tactic.

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“The state attorneys general are not stupid,” University of Michigan law professor Nicholas Bagley said of Paxton and his red-state allies who fought Obamacare. Bagley had urged the judge to uphold the law. “They know where to file the case to judges who are most congenial to their views.”

Paxton and O’Connor didn’t immediately respond to requests for comment after regular business hours.

Even before the Obamacare cases, O’Connor was no stranger to showdowns over hot-button issues near and dear to conservatives. In 2013, he ruled that Obama’s policy for protecting children of undocumented immigrants from deportation was probably unconstitutional, though he stopped short of derailing the program. In 2015, he struck down a ban on the interstate transfer of handguns. That same year, he also blocked Obama’s Labor Department from expanding family and medical leave protections to same-sex couples.

Abbott and Paxton filed their first two Obamacare cases in Wichita Falls, Texas -- a city of about 100,000 near Oklahoma whose federal courthouse is an outpost for the Dallas-based northern district of Texas.

Ordinarily there’s no guarantee a lawsuit will go to a particular judge because U.S. courts rely on a random lottery to assign cases. But the Wichita Falls court was staffed by only one full-time judge, O’Connor, whose regular chambers are in Fort Worth. There was no need for a lottery.

In one case, Texas and five other states won a ruling from O’Connor invalidating Obamacare’s health insurance provider fee, which was imposed on states to help fund the program. The decision meant the states were off the hook for billions of dollars.

In another, a Texas-led coalition of states and Christian health-care providers convinced O’Connor that Obamacare regulations barring discrimination in health care on the basis of “gender identity” violated religious freedom. Months earlier, Texas had persuaded O’Connor to block the Obama administration from enforcing a directive that U.S. public schools allow transgender students to use bathrooms and locker rooms according to their gender identity.

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Abbott and Paxton filed their constitutional challenge to Obamacare in Fort Worth. But they got the case steered to O’Connor -- and avoided a lottery -- under a rule that allows new cases “related” to pending litigation to be assigned to a judge who’s already up to speed on the subject matter.

The ruling O’Connor issued Friday is far more sweeping than the previous cases he handled. While Bagley and other legal scholars opined that Texas and its allies had weak arguments, O’Connor found otherwise.

“In sum, the individual mandate ‘is so interwoven with [the ACA’s] regulations that they cannot be separated. None of them can stand,’" the judge wrote.

O’Connor won’t have the last word. When the ruling is appealed, neither side will get to cherry-pick the three-judge panel that reviews his ruling, as federal appeals courts use random lotteries.

Still, the odds are in conservatives’ favor at the New Orleans-based Fifth Circuit Court of Appeals, where there are 11 active judges appointed by Republican presidents -- including five named to the court by Trump -- and only five Democratic appointees. From there, the fight is likely headed to the nation’s highest court.

To contact the reporters on this story: Kartikay Mehrotra in San Francisco at kmehrotra2@bloomberg.net, ;Tom Korosec in Dallas at tkorosec@texaswordworks.com

To contact the editors responsible for this story: Elizabeth Wollman at ewollman@bloomberg.net, Peter Blumberg

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