The Legal Threat to Obamacare Is Back. Again.

https://www.nytimes.com/2019/12/19/opinion/editorials/obamacare-court-unconstitutional.html

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Judge Carolyn Dineen King was a voice of reason on Wednesday as her fellow members of a three-judge appeals panel sustained a legal threat to the Affordable Care Act.

In a 2-to-1 ruling, the United States Court of Appeals for the Fifth Circuit agreed with Judge Reed O’Connor of Federal District Court for the North District of Texas that the law’s requirement that Americans buy health insurance is unconstitutional. The majority ruling did not accept Judge O’Connor’s reasoning that the mandate’s unconstitutionality made the rest of the law void. But the decision kept that threat alive by sending the case back to him to clarify his reasoning as to which parts of the law, along with the mandate, must be struck down.

Judge King assailed her colleagues for not rejecting what she called “textbook judicial overreach.”

If you’re wondering why the courts are considering the legality of the Affordable Care Act after the Supreme Court already determined it was the law of the land, you have Donald Trump and congressional Republicans to thank.

Mr. Trump’s 2017 tax cut bill reduced to zero the law’s penalty for not purchasing health insurance. Texas then led a group of Republican-led states in claiming that without the penalty the mandate could not survive, since the court had only upheld the mandate as a tax that Congress was entitled to enact. Without the mandate, they claimed with the thinnest of reasoning that the whole law — with its insurance exchanges, Medicaid expansion and coverage for pre-existing conditions — must fall. Mr. Trump’s Justice Department made matters worse when it agreed with the challengers that all of Obamacare should go. As many as 21 million people could lose insurance if the law is killed. Limits on how much insurers cover in a year or a lifetime would end.

But the 2017 Congress, for all its anti-Obamacare animus, left all of the law’s operative provisions intact. It even left the mandate in place, Judge King noted, even though it could no longer have any effect.

“This insight, that the coverage requirement now does nothing, should be the end of this case,” she wrote in her dissenting opinion in Texas v. United States. “Nobody has standing to challenge a law that does nothing. When Congress does nothing, no matter the form that nothing takes, it does not exceed its enumerated powers. And since courts do not change anything when they invalidate a law that does nothing, every other law retains, or at least should retain, its full force and effect.”

Instead, the majority on the Fifth Circuit gave Judge O’Connor a do-over, instructing him “to employ a finer-toothed comb on remand and conduct a more searching inquiry into which provisions of the A.C.A. Congress intended to be inseverable from the individual mandate.”

That’s judicial abdication of the highest order. Why couldn’t the Fifth Circuit itself make those determinations?

“We are just as competent as the district court,” Judge King wrote. “There is thus no reason to prolong the uncertainty this litigation has caused to the future of this indubitably significant statute.”

Maybe that was the plan all along: to mire the future of Obamacare in litigation, and thus provide Republicans a lifeline on an issue that cost them dearly in the 2018 election. They can continue to degrade the vital protections of Obamacare without taking responsibility for repealing and replacing it, as they so often promised they would.

Xavier Becerra, the California attorney general and a leader of the effort to defend the Affordable Care Act in the courts, has indicated he plans to challenge the Fifth Circuit’s ruling.

It will likely yet fall to the Supreme Court to clean up the mess. Chief Justice John Roberts has shown little appetite for existential threats to the health care law, but staunch Republicans give him no choice.

“It is not our job to protect the people from the consequences of their political choices,” Chief Justice Roberts wrote in the 2012 landmark that saved Obamacare from doom.

But he may need to protect us from the consequences of elected officials’ political choices.

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