How the GOP broke ObamaCare — and the federal judiciary

Joel Dodge

Just hours after ObamaCare's open enrollment ended for the year, a federal court of appeals threw the law into legal jeopardy based on a far-fetched lawsuit. Once again, the wellbeing of millions of people has been imperiled by the caucus of conservative federal judges intent on working hand-in-glove with Republican politicians to roll back universal health care in America.

The latest lawsuit, Texas v. United States, is a bizarre posthumous attack on ObamaCare's individual mandate, which congressional Republicans effectively repealed in their 2017 tax bill. Yet on Thursday, the U.S. Court of Appeals for the Fifth Circuit declared the post-repeal husk of the mandate unconstitutional because it no longer functions as a tax. (Chief Justice John Roberts upheld the mandate as a tax in 2012.) More ominously, the court suggested that much of the rest of the law — its protections for people with pre-existing conditions, its health exchanges, the Medicaid expansion, and more — could fall with it. The court punted the work of figuring out just which provisions can be spared to district court judge Reed O'Connor, a conservative activist judge who already ruled that all of ObamaCare should be wiped out.

It's a stunning judicial power grab. To reach its conclusion, the court had to conjure a sort of Schrodinger's mandate, both dead and alive at the same time: too dead to generate any government revenue (and thus no longer technically a tax), but alive enough to still compel people to buy insurance (and thus allowing them to sue at all).

And the idea that courts have the power to invalidate any of the rest of ObamaCare is willfully blind to what actually played out in Congress in 2017. After trying and failing to repeal ObamaCare, congressional Republicans gave up, moved on to tax cuts, and sacked just the individual mandate for its cost savings. Congress itself already determined that the rest of ObamaCare could stand even without a functioning individual mandate, and Congress certainly did not hide full ObamaCare repeal in a tax bill.

Nevertheless, one of the country's most conservative judges has just been tasked by one of its most conservative appellate courts with picking through the carcass of ObamaCare to determine what — if anything — can be salvaged.

It's the third time this decade that an off-the-wall legal claim against ObamaCare quickly became on-the-wall after being rubber-stamped by conservative judges. Legal scholar Brian Highsmith — who warned a year ago that the Texas case could take down ObamaCare — attributes this pattern to the GOP's adept use of what he calls "partisan constitutionalism." Republicans, he wrote, "us[e] courts to relitigate battles that they can't win through the democratic process." The party's entire apparatus is mobilized: Republican state attorneys general bring lawsuits, and national Republicans in Washington endorse those lawsuits through conservative media and legal briefs filed in courts, which lends Republican-appointed federal judges sufficient institutional cover to validate the legal arguments. In Texas, the 18 Republican attorneys general behind the lawsuit even had the support of Trump's Department of Justice, which refused to defend ObamaCare in court.

The predictable advancement of ObamaCare lawsuits stems from the fact that conservatives across government feel in their bones that universal health care is illegitimate and un-American. The legal arguments are just formalistic dressing for ideological belief. For example, in the first round of individual mandate litigation in 2010, what really bugged conservative judges wasn't whether the individual mandate actually pertained to interstate commerce or not — the technical legal claim at issue — but rather the sense that it was anathema to individual liberty.

The same is true in Texas, where political ideology is hardly submerged in the court's opinion. In one footnote, the appeals court needlessly speculates that the ACA was perhaps "enacted as part of a fraud on the American people, designed to ultimately lead to a federal, single-payer health-care system." To support this wild theory, the court cites a statement by a one-term Republican congressman who was not even in Congress when ObamaCare was passed.

In another gratuitous footnote, the court felt compelled to point out that "[o]pponents of the ACA … argue that the act goes too far in limiting individuals' freedom to choose health-care coverage." For that, the court relies on a statement by former GOP Rep. Darrell Issa criticizing the Obama administration's "if you like your plan, you can keep it" pledge.

There are also career incentives for judges at work. President Trump and Senate Majority Leader Mitch McConnell have packed the courts with conservative judges. And by attacking Chief Justice Roberts over his votes upholding ObamaCare, Trump has sent a clear signal to aspiring judges: to win appointments — or just be invited to the right Federalist Society engagements — they must maintain their anti-ObamaCare bonafides.

The perpetual legal assault on ObamaCare is the leading edge of the GOP's growing takeover of the federal judiciary. Millions of people who depend on the law for their health care could be the ones who pay the price.

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