OK, Republicans. Defend this. Or better yet, show us your most awesome solution. Waiting ...
35
No surprise, the repbulican evangelical corruption has reached the Courts.
There never was Judicial Activism, that was a propagandist term generated by the Federalist "club".
What came from that group of loud mouth Federal Judge Wannabee group of right-wingers...Judicial Arrogance.
Money is not free speech, and a business can not have religious rights.
The Law is a tool for humanity, not a weapon against the masses.
36
Politicizing of the judiciary...another step in the totalitarian takeover of the country. Fascism rising! Vote them out. Vote every single Republican co-conspirator out of office at the first opportunity. They don't even pretend to care about how their activities are perceived anymore.
30
When it comes to healthcare, the US is a backward member of the G20. If you don't take care of your citizens, your empire will fall and crumble, like it is now.
Healthcare in the US is used as a political weapon against the disenfranchised and an obscenely efficient profit center from the super wealthy .
In among the madness is the good ole' bigotry of the core of the crazies in the GOP that don't want anything to do with a health program initiated by an African American President.
This is a lost nation at the crossroads, best of luck
39
Might this be an instance of forum shopping outside of the 9th federal judicial district?
4
When these two reporters premiums rise 350 bucks a month (thats a 33% increase) like ours did for 2019 (mostly to make up insurance company loses under Obamacare from having to cover masses of unhealthy people) they won't think Obamacare is so wonderful.
3
Once again, GOP operatives (hiding behind black robes this time) employ spurious means in enacting a political agenda. That is to say, they cheat. A pox on them. Their day of reckoning is coming. Even in Texas.
22
Not to worry. This decision means Democrats can start measuring for drapes in the White House and start buying furniture for Senatorial offices for 2020. Not to worry.
14
Every well-trained hypocrite knows it's only "judicial activism" and "legislating from the bench" when liberal judges do it!
20
The point is, one of our worst problems is that a whole passel of well-funded right-wingers simply don’t care who voted for what, what anybody wants, or what the last election results were. Not big on real needs, what’s best for the country, or moral values, either. That’s just stuff you say so nobody notices what you’re up to.
They’ll simply go to court, again and again and again, and throw lawyers and money at the “problem,” until they get what they want. Abortion rights, gun control, a fair shake for everybody, some limits on campaign finance or corporate greed, environmental regs that protect us all—who cares? We got the money, we got the lobbyists, we got the lawyers, we’ll just hit the ol’ courthouse.
Sooner or later we’ll get the judge we wanted. And if that takes too long, hey, we’ll have Scott Walker rewrite the rules. I mean, we KNOW that young people and lefties and minorities won’t turn out to vote, so who cares what they mutter about?
No wonder they get along with Trump, who’s spent his foul career pulling this junk.
And then, off course, we’ll get the typical blather—just like we are now—about tradition and the Real Constitution and Relativistic Liberals.
22
Judge O’Connor is a Federalist Society zealot appointed by George W. Bush. He is now only the tip of the iceberg set to crash into every single freedom the little people who are not wealthy white evangelical Christian hererosexual males now enjoy. He’s been sitting on this court issuing controversial rulings for years. He was Exhibit A as to why voting for a third party candidate in our two-party electoral college-decided presidential election is a willfully-blind, narcissistic, and, frankly, misanthropic exercise in enabling authoritarianism.
This is exactly what Stein voters were warned of and yet they enthusiastically voted for it. Your vote “against” Clinton enabled Trump to now fill the judicial system across the nation with identical judges to this epitome of raw white male power who will all be attacking your rights all the way to your grave.
29
But...al those Republicans said our preexisting coverages would be safe! Did they lie?
19
I am a lawyer and a liberal but the authors are way off the mark here. Judges and Justices differ widely in their opinions and judicial philosophies. This is just one example. Stop whining.
6
Now we have a trumpian judicial hack on the bench. SAD! Watch out- we are very close to the rabbit hole.
8
I think it must be noted that state AG Ken Paxton has been indicted for security law violations, in other words fraud. But Paxton's trials are on hold while the Texas Court of Criminal Appeals decides whether the prosecutors on the case are being overpaid.
You really can’t make this stuff up! Hopefully we we all,get to see him in an orange jumpsuit like, Pauly, Mikey, et al.
9
Conservatives really hate poor, sick people this much? Wow. It's like they blame them for being poor and sick.
In Australia we pay an extra 2% tax to fund the health system. It's not perfect, but you get world-class care when you need it, whether you live in a mansion by the harbour in Sydney, or a trailer in a small country town. There's something unselfish and egalitarian about it that's missing from your system over there.
29
Man it's a great time to be a lawyer nowadays! I'm suing you, you are suing me, lets sue her, and she can sue him. I mean what the ? I'm sure that SCOTUS has already ruled that the ACA is constitutional? What does this ruling mean for other SCOTUS rulings?
Or how about Texas just remove themselves from the rest of us? Just go ahead and disenroll from the ACA.
Man we have issues.
5
I hate the ACA. I friend has to pay $17,000 a year for HMO insurance with a $7,000 deductable. What kind of a joke is that?Nancy Pelosi fought for "The Public Option" and lost out to this horrendous law. I knew from the beginning this wasn't going to work out. 20 million people added to the medicaid system but millions more STILL left without medical care. Everyone needs "health maintenance", NOT as we mistakenly call it,"insurance".
Regular checkups. Trips to the dentist. Free clinics. Free consultations at the "drug store" by a pharmacist. Last time I went to the emergency room I was seen not by an M.D. but by a Physicians' "Assistant". Who gave me substandard care. Our healthcare system is run by computer programmers who are better at putting colorful framed prints on hospital walls to improve the "atmosphere" than giving you the experienced physicians to find out why you're experiencing abdominal pain or severe headaches. Wait until you get really REALLY sick and need
expert medical attention. Who's going to examine you, and who's going to pay for it? The DOCTORS are the ones who should be marching to Congress, demanding better healthcare for their patients. Instead they are out on their boats fishing, or playing golf. Ignorant and uneducated people do not understand the complexities of the human body. And should NEVER be allowed to make medical decisions, or decide how to administer to the sick.
Hilary Clinton knew that years ago and people laughed. who's laughing now?
12
What's the GOP healthcare plan? Blame Democrats? Blame immigrants? More guns?
After all, when combined with their bigotry, outright "good people" racism, and religious hypocritical zealotry, it's their modus operandi. Sad it works on a solid 30% of the likely voters.
Hopefully, this is the final nail in the GOP's coffin for 2020.
14
O'Conner is affiliated with the Federalist Soc., a W. appointee like Kavanaugh. Wait until all of the Trump Federalist Soc. judges start their partisan . Talk about judicial activism--a naked judicial power-grab striking down the existing system and re-writing our healthcare policy.
What is the Federalist Society?
"Morton Blackwell, president of the Leadership Institute and a longtime organizer of young conservatives....made his point plain. The path to victory ran through the law. Through the judiciary.
He ticked off a to-do list: “How to get the right people into the study of law. How to get into the right law school. How to succeed as a conservative in law school. Law student participation in politics and government. How to get better people on law faculties. How to get a good clerking job. How to become a judge. How to make sure the right people get to be judges.”
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608
2
If wishes were horses, beggers would ride. Looks like this judge gave every GOP congressman who voted to repeal the ACA a very fine steed, indeed.
2
I thought conservatives hated judicial activism? The fact so many Republican leaders are a party to this lawsuit shows that all was hypocrisy.
13
The right never stops playing politics with access to health care for 20 million people.
Like our persistence in making assault weapons and other guns available to any murdering nut that wants to buy them, we're a country so mired in poisonous 'rights' and nasty cultural politics that we are crippling, maiming and destroying our own people. Even our children.
I wish I understood why European countries can provide affordable national health care to all their citizens and don't permit sales of assault rifles and handguns. Why do these countries have better sense and a strong commitment to protecting the lives and health of their citizens - and we constantly make messes like this?
America - land of the free and very stupid.
12
It may not be long before the SCOTUS has nothing to do with reasonable. The two Nuremberg Laws were unanimously passed by the Reichstag on 15 September 1935.[41] The Law for the Protection of German Blood and German Honour prohibited marriages and extramarital intercourse between Jews and Germans, and forbade the employment of German females under 45 in Jewish households. The Reich Citizenship Law declared that only those of German or related blood were eligible to be Reich citizens; the remainder were classed as state subjects, without citizenship rights. The wording in the Citizenship Law that a person must prove "by his conduct that he is willing and fit to faithfully serve the German people and Reich" meant that political opponents could also be stripped of their German citizenship. This law was effectively a means of stripping Jews, Roma, and other "undesirables" of their legal rights, and their citizenship.
At the same time, they left it to the courts to provide practical guidelines for their implementation. It thus became the province of the Supreme Court to render final judgment on the interpretation of the law, since, as the highest appellate court in Germany, its decisions superseded those made by lower courts. Indeed, the court eased the difficulties inherent in implementing anti-Jewish policies across a broad spectrum of cases from divorce to criminal race defilement.
Now that is what I call "raw judicial power." History may not repeat but it sure does rhyme.
7
"Pray tell, Jesus, what good news do you bring us this holiday season?"
"Why, I plan to strip millions of my children of health insurance coverage."
In case you aren't paying attention, America, the rest of the world (save Russia, perhaps, and Saudi Arabia) are bearing witness to your unravelling.
7
This gets dumber and dumber everyday. SCOTUS I note determined thanks to Chief Justice Roberts and the court's liberals that the mandate in ACA was constitutional because it was a bogus mandate. The penalty the Court said was not sufficient to persuade anyone with half a brain to buy insurance rather than go without at least until one got a preexisting condition, so the supposed mandate was not a real mandate, and the penalty was not a real penalty, but just a tax, and therefore constitutional. The Court said in effect that the ACA was constitutional because it was broken and could not be fix without violating the constitution. And the Republican response was to make clear even to the dimwitted that they had no obligation to buy insurance when they are healthy and if and when they got sick the government and the people that pay taxes would help them pay for it, .i.e rich Republicans. And now this judge tells us that the ACA is unconstitutional because it doesn't have a mandate and therefore is really stupid. Sorry but the constitution doesn't protect the taxpayers from really stupid legislation. Roberts said that the last time and no doubt he will say it again when the time comes.
I suggest we need is Obamacare 2.0. That is instead of ordering Americans to buy insurance and pay a penalty if they don't, Congress should impose a tax of some significant amount on everybody and give those who have insurance a credit against that tax. That would pass muster.
7
America, it is clear from the ongoing battle against the ACA aka Obamacare, that the Republicans are not....pro-life! Millions of Americans have been helped and LIVES SAVED because of the Affordable Healthcare Act! The Republicans CUT taxes dramatically to the wealthiest of the wealthy and now they want to CUT Medicare and Medicaid!
Let’s remember this in 2020....vote to “repeal and replace” Republicans!
This ruling by the Texas judge IS UNCONSTITUTIONAL!
5
After 30+ years in the legal profession, I have learned a couple of things.
First: Just because a guy has a bar license, doesn't mean he knows anything.
Second: just because judges wear black robes and sit on high on the bench, doesn't mean that THEY know anything either - nor have any SENSE.
I too disagree with the plainly ridiculous ruling coming out of such an already politically confused and blighted state as Texas.
NONE of us should take solace (as these articles are sometimes relied upon by people to do when something like this happens) in the allegation that Justice Roberts is not, in any way, IMO, "sensitive" to the court being used as an instrument of politics.
If he WAS, he wouldn't have embraced the majority's plainly RIDICULOUS premise that money equates with speech.
Or, for example, that Judge Kavanaugh - now elevated to the high court as the immaculate St. Brett the Virgin - once took a narrow view on severability, and that therefore, he can be relied upon to do so again if the case comes to the Supreme Court.
Or that Justice Roberts was right when he wrote the majority opinion in striking down crucial parts of the 1965 Voting Rights Act when he said "our country has changed", was now in a completely post racial mode, and that therefore key protections of the Act shouldn't have to exist anymore.
Such reasoning is the reasoning either of ideologues; political operatives; or MORONS, NONE of whom should be allowed to be on the high court.
9
Stop calling it Obamacare. It’s my medical coverage insurance.
4
Much thanks to professors Adler and Gluck. The principal of "severability" isn't that complex- yet only a few commentaries have addressed it.
Quite simply put, what Judge Reed O'Connor did was the equivalent of a physician throwing out the baby with the funiculus umbilicalis.
5
This is probably really making Vlad's day so it's no wonder that the current POTUS is happy about it.
4
In all the court cases to come before judge O'connor that had reference to Obama he ruled against Obama and anything resembling him.
O'Connor represents exactly what you do no want in a judicial position.
He's obviously a racist.
No surprise on this latest ruling of his.
5
Republicans are eerily silent about this. Not a peep from any Republican leader either celebrating or decrying the ruling. Not a word, let alone a headline, on Fox News. Trump, who can never keep his mouth shut (or his fingers idle), is the only one who's trumpeted this ruling as a victory.
We all know that Republicans never stay this silent when they win a victory, even a minor one. I think they realize their little trick earlier in the year in the tax "reform" law worked a little too well, and will now bite them mightily.
BRING ON SINGLEPLAYER HEALTHCARE!!!
12
Republicans are having a field day in the lame duck session. I'm sure the law and jurisprudential norms will return and Democrats will play nice with their feral opponents.
3
"Intent" is the last bastion of the failed argument.
1
And in addition to trying to understand the merits of what is, and what isn’t, what should be and what shouldn’t be, where does personal accountability fit in?Of judges? Local. State. Federal. Of elected and selected policy makers? Local. State. Federal.Of whatever gender and gender identity? Of whatever misrepresented-faux-color? Age? Ethnicity?
“Originalists,” or not?Of whatever faiths; as part of an ongoing lifestyle or in name only?Of whatever ideological beliefs- political, economic, social, etc. ? How did we enable a culture of unaccountability to be seeded, to grow, and now, harvested daily, we suffer the consequences!
2
Getting rid of the ACA will be horrible for people, but I hope that it will prove equally horrible for the GOP at the polls. It may take something this radical for people to realize how evil the GOP really is.
7
Meet Trump's next nominee for the Supreme Court, if he gets the opportunity: Judge Reed O'Connor.
Lord help us....
1
What a mean, devious evil business.
In Europe a functional healthcare system is considered across most of the political spectrum to be a basic requirement for any advanced society.
Over there, it seems, it's considered wild extreme socialism that threatens the very foundations of society.
God help you, if you can't help yourselves as a civilized society, but care only about helping yourselves as atomic individuals and selfish powerful interest groups.
...But I think God would disown your powerful self-interested 'Christian' Right who seem to care more about killing people at home and abroad with guns, than saving lives.
4
Mitch McConnell is cackling with glee. O’Connor, though not appointed by trump, is the face of the judiciary he is angling and “praying” for—one which will provide poorly-considered decisions which will favor republican party causes.
I have to hand it to the republicans, though. At both the state and federal levels—from the anti-democratic Scott Walker to the assorted nest-featherers, grifters, and basically evil people who slink through the white house and government departments—the plan for a durable right-wing hegemony is being carried out capably and with remarkable speed.
People who really care about the country have been caught flat-footed and are struggling to keep democratic institutions intact.
7
Bravo! The ridiculous assertion that a judge can decide “separability” when no court separated anything was stunning to hear on the radio this morning. Thanks for reminding the Times readership that congress is permitted to modify its own laws, subject only to the constitution.
2
Two things will happen:
When kids from 18-26 yrs will be kicked out of parents insurance then the conservatives will scream.
The New Congress will propose Single Payer which will be easily sold to the conservatives that this replaces the hated Obamacare (which was a republican idea in the first place!)
3
This ruling by O'Connor will be reversed, and will have zero effect while waiting for reversal.
That said, in my opinion, having studied and reviewed the ACA plan, and its effect on premiums, deductions, and other costs fo middle-class Americans, there is no doubt whatsoever that the act was designed with the aid of Insurance companies, often in secret, to increase premiums, increase deductibles, and garner yet more obscene wealth from the mandated coverage of another 26 or so million people who now had their premiums paid for by taxes collected from the middle-class.
Our corporate owned government is a monstrous entity, with zero regard for anyone other than the monied elites, and the corporations which run this now fascist nation.
Eventually we will have single payer healthcare, socialized healthcare, same as exists in Europe, Russia, and most nations on the planet.
Our Masters are sitting on a gigantic petard which they have spent decades building, so deeply emmersed in their own hubris they neglected to take the matches from the tens of millions of people, circling below, falling over each other in the race to light the fuse.
6
Liberal hypocrisy in its rawest form.
If our liberal friends dogma is that any of 500 liberal activist so called judges can overrule a legislative act passed by Congress, signed by the president... and mostly upheld by the Supreme Court then this is no democracy.
I hope that even leftist liberals belatedly recognize that the totally out of control political judiciary needs to be reformed and shorn of this unconstitutional usurpation of power.
4
Judges attacking and running roughshod over our established laws need to be investigated and recalled. We cannot tolerate these corrupt justices any longer. They need more scrutiny and severe penalties for corruption.
2
I don't live near the border I live on the border and I don't have to be a genius to realize how bad conservatism has been for so many American families and individuals. I am 70 and remember when Vermont was Mississippi North and how the influx of East coast liberals like Ben Jerry and Bernie improved the health, education, security and welfare of Vermonters.
I live in Quebec where the welfare of the people is far more important than the welfare of corporations. It is 50 years since the start of the quiet revolution and the flight of corporations and our financial elite. Two referendums and years of a not so good economy later we are the envy of the world. Unemployment is a negative number and we need new citizens. We have a government that took in too much revenue and is looking on the best way to have it benefit our citizens We have a strong powerful neighbour writhing in psychological pain too stupid to look north at what contributed to our success. It is disheartening. Conservatism has little to offer if we are to survive and even less to offer if we are looking to provide healthier, more secure and more fulfilling lives to our citizens.
11
What is the over-under on how long it is before the Americans people stop tolerating being ruled by illegitimate judges appointed by minority governments and torch the Supreme Court to remind the judges who the real power is?
2
Will GOP voters in rural red states even notice? Maybe they will when they get the bill for their heart attack and the hospital gets their house. Of course at that point they will blame Nancy Pelosi and get Trump reelected so he can gut Medicare. Then they will blame Chuck Schumer.
5
Republicans should follow this ruling right off a cliff by allowing hospitals to deny service to those unwilling or unable to pay. Show them who you really are! It is Christmas - let it shine
2
Just before Christmas, Judge O'Connor makes Scrooge look like a philanthropist.
2
Is anyone surprised that a hack judge did this? Is it any wonder that Republicans move heaven and earth to get such hacks on the federal bench? Simple solution: no Republicans and no Republicans in the White House. This will take a generation to correct but correct it we will.
2
If this is not Good Behavior, let's remove the offending Judge from office.
Wipe out the ACA! Get rid of it. It is nothing but a give-away to greedy, heartless insurance companies - who may be forced to provide coverage under the ACA, but nevertheless continue to deny claims. Did anyone seriously think that the insurance companies, once in charge of it all, would change their business model?
Without the ACA there is only one way to go: Universal Single Payer Healthcare. Let's join the rest of the world.
Healthcare is the Number One matter of National Security. Without healthcare, none of us can be truly secure.
https://emcphd.wordpress.com
7
The decay in the quality and the independence of the judiciary is a hallmark of our descent into authoritarianism. Mitch McConnell is truly the worst.
3
The now-feckless, lying, destructive Republicans - you know, the ones who pledged to protect pre-existing conditions yet gut the ACA, the anti-American Party that would deny insurance to tens of millions of their fellow Americans, the "conservative" hypocrites that should have been working to improve what was already Federal Law instead of blindly trashing it - have done it again.
This time the effects of their "court stacking" should be quite evident. They swear that they want "conservative" judges who will uphold the Constitution "as written" and not "make law" are doing exactly the opposite. This is a hostile takeover of our laws and government by a power-hungry bunch of amoral thugs that very much need to be ousted as soon as possible.
4
Are fraud, manipulation, and self-aggrandizement considered pre-existing conditions? Ought to eliminate the GOP from the ability to participate in any future healthcare planning based on their prior "sick" motivations.
Republicans practice what they accuse Democrats of doing: the GOP claims that Democrats are guilty of committing voting fraud, but GOP laws making it more difficult for minorities & the poor to vote, the GOP accuse Democrats of nominating “Activist Judges”, but Republican-appointed jurists constantly practice “motivated reasoning” that curiously agrees with GOP policies, the GOP accuses Democratic voters of practicing “welfare fraud”, yet Republican welfare fraud exists in the huge give-aways the Republican Congress passes, favoring profitable corporations and the already wealthy.
And let’s not forget the lame duck shenanigans of GOP State legislatures passing last minute laws limiting the powers of newly elected Democratic governors, Mitch McConnell’s horrible, unethical treatment of Merrick Garland, and the corruption of the Trump administration that the GOP doesn’t even attempt to hide, anymore.
The Party of Abraham Lincoln, Theodore Roosevelt and Dwight Eisenhower has become the Party of Religious Fundamentalists, rural/working class racists and political grifters.
In Donald Trump’s word, “Sad”.
1
This is a federal judge who has taken it upon himself to overthrow Obama-era policies in an aggressive fashion. He has probably never had to worry about having health care for himself or for his family, so pulling a decision out of a “hat” does not trouble him ethically. Moreover, I have noticed that he, like Cong. Jim Jordan and others who tout the ultra-conservative line, received their legal training at third-tier law schools. But vaulting ambition apparently knows no bounds, so they go about their work oblivious to what they do not know or understand.
1
so much for conservative's alleged disdain for "activist"
judges, the real agenda in this case seems to be to let low income people die of lack of medical care in order to put more dollars into the coffers of the well to do
2
Get over it. Forcing people to buy/have medical care under penalty of taxation is immoral and wrong by every standard.
1
Why stop there? Why not overturn the entire Constitution? Just as the Bush cabal declared the 8th Amendment ban on torture "quaint," we could declare the entire Constitution "quaint." In fact, we could declare the entire United States "quaint" and rule that the Kremlin has the right under the constitution that the founders wished they could have written to be the legitimate controlling authority of the lands between Canada and Mexico. After all, Russia once owned Alaska and would still own it if not for Sarah Palin! As the high court ruled, "corporations are people, but people are not corporations. Therefore, people are not people and have no standing before the court." (Yes, I am a Stable Genius of the equine variety!)
2
Anyone remember GWB's campaign against Activist Judges?
Of course the right won’t call THIS a ruling by an “activist judge.” Because the right are craven hypocrites.
"What the Lawless Obamacare Ruling Means"
We wouldn't be in this predicament if Chief Justice Roberts didn't call it a tax in the first place. Even Obama went to great lengths not to call it a tax:
https://www.youtube.com/watch?v=tQMkOScXctY
The idea that the federal government can compel a person to purchase a service or product is itself unconstitutional. Hiding that unconstitutionality with the "it's a tax" argument was where Roberts got it wrong. He, along with most members of government, give too much power to the Commerce Clause:
https://www.youtube.com/watch?v=6SDf5_Thqsk
1
I've haven't got a dog in this fight, I've got my own excellent health insurance through my employer, but.......I'm not sure who to believe. When I speak to my friends without health insurance, they gripe about having to pay the penalty because they don't want to pay for the health insurance, and they don't want to pay the penalty either. When I come here to the NYT, most of you guys seem to think it's great, "millions more covered"......, but I get the impression that nearly all of you have your own health insurance, not from the state insurance brokers. Nobody that I am acquainted with, actually uses it. The guy company that I work for, blames the ACA for our health insurance premiums going up double digits each year. On the other hand, the right wing guys, think God hates everyone but them, and they hate this Obama era thing with a passion because, well, Obama. So I'm not sure, but I think most of it is partisan politics, right wing hates everything Obama, left wing thinks it's all great. The real deal is being obscured by opinions, not facts. If you try to read it, lots of hidden little details in it, and I don't really have the time to disseminate the whole thing.
2
Judge O'Connor's decision is demonstrable proof that the idiocy of the current Executive Branch of the U.S. government has not only disabled the Legislative Branch, but also infected the Judicial Branch. Let's hope and/or pray that our Judicial Branch has enough intellectual and moral health and strength to resist the pernicious effects of the disease commonly known as Trumpism.
This judge should be impeached for incompetence and failure to follow the law, and removed from the bench.
I light of Judge O’Conner’s ability to divine the intent of Congress, I am reminded of Justice Brennan’s comment that “original intent is nothing more than arrogance cloaked as humility “. Works here too.
I see no reason that a Tea-Party judge needs to base decisions on anything but GOP vindictiveness, much less rock-solid legal reasoning. That's so 2015.
"Lawless" is exactly right.
That's what it comes down to with today's GOP - the very people entrusted with safeguarding our legal system - Scott Walker and his henchmen in Wisconsin, George W Bush's federal judge appointee in Texas - aren't safeguarding our laws and our democratic republic, they are dismantling it, brick by brick.
4
"In a shocking legal ruling, a federal judge in Texas wiped Obamacare off the books Friday night."
Adler and Gluck simply weren't paying attention to the Texas case if they find the ruling shocking.
I agree - but this is exactly what "the other side" thinks the Supreme Court did in Roe v. Wade and Obergefell.
2
Yet another transparent swipe at the citizens of this country by vindictive republican operatives.
I look forward to watching them being picked off after each new outrage.
I used to think the republican party should be reformed. It is beyond reform and needs to be discarded.
They are destroying our country in slow motion.
Hawaii judges can unilaterally block Trump's immigration policies, and Texas judges can unilaterally block Obama's healthcare policies. Seems fair to me.
3
I was surprised when SCOTUS upheld it because of what I thought was dubious about making people have private insurance--what a boondoggle for the insurance companies! But should we be surprised at all now about red state "justice" as demographics keep moving along for women and people of color, especially now that it has gotten faster from the recent election. The scramble for grabbing all that so-called conservatives (read: white supremacist cult members) can get--typical of their ruthlessness, anti-democratic way--has accordingly intensified.
Who keeps the judges in line? This is clearly either a partisan judge with no respect for the rule of law, or a judge who doesn't understand the law he has sworn to uphold. Assuming the former, I'd start looking for the judge's connections to Trump, since killing anything related to Obama is Trump's racist and secret dream.
While I believe ( worth nothing to anyone but myself) that the 2012 case upholding the ACA was wrongly decided, agreeing instead with the four justices who would have struck it down as it was unconstitutional as written, this argument on this decision is in error is persuasive.
The 2010 congress found the mandate necessary to what they were attempting to accomplish. The court rightly noted that they have no such authority, but then made a mockery of the constitution by giving them that authority by calling it a tax, effectively rewriting the law, as well as treating tax law as a universal tenth amendment override.
But the 2017 congress didn’t find the mandate necessary. Maybe they don’t want to accomplish so much. Maybe they want only Medicaid expansion and a low income subsidy. Maybe they are stupid. All of that is outside the courts scope. This is where Scalia’s stamp “Stupid but constitutional.” comes in use.
1
The US judiciary is a black hole of contradictory decisions and no decisions at all. Once judges are on the bench, they can purposely drive people crazy.
There were liberal principles and conservative principals ...And now We have republican principals .
1
Just a preview of what is to come when McConnell is done packing the federal courts.
Conservatives love to criticize judges who they believe are "judicial activists" - i.e., those who step in and strike or change laws enacted by the legislative branch.
So we should expect to hear howling from conservatives over this plainly activist opinion, right?
No, silly!
Conservatives only believe judges are activists when their decisions result in holdings that conservatives disagree with.
I'm glad this judge struck down Obamacare. It didn't cover everyone. And I lost the insurance plan Obama said I could keep. So, good riddance to it.
1
Wow. It almost seems like this conservative judge released his ruling on a Friday night to distract the red base at the end of one of the president's worst weeks in recent memory. Did he get his marching orders from the Federalist Society? Or directly from fox 'news.'
1
It was absurd for Trump to crow about Friday's ruling, when he knows full well that Congress - despite full Republican majorities - could not pass any replacement for the ACA. Now, if Obamacare is nullified, Trump will have no cover for failing to come up with that terrific replacement he promised.
27
Let the ACA die. It is seriously inadequate. Then make the next election about healthcare. The time is right. The Republicans would get slaughtered. And let me answer the question the Republicans will be asking: How are we going to pay for it? Take the money you are sending to insurance companies every year, send 2/3 of it to the government in taxes, put the other 1/3 in your bank account. Problem solved.
29
And silly me thought conservatives were absolutely opposed to any hint of judges enacting new laws. Seems that shoe managed to get on the other foot.
35
“But as experts in the field of statutory law, we agree that this decision makes a mockery of the rule of law and basic principles of democracy — especially Congress’s constitutional power to amend its own statutes and do so in accord with its own internal rules.”
Sounds like your typical Conservative thinking these days.
11
The GOP just can't kill poor and middle class American citizens fast enough.
Can anyone name a single thing the Republican Party has done to benefit the majority of Americans in the last 40 years?
Remember, the only qualification is, it has to have "helped" a "majority" of Americans.
Best of luck...
32
I know and worked with Reed O'Connor, and in my opinion, he's a showboat, a power-lover, and a middleweight legal thinker. Hence, this opinion surprises me not at all.
37
It's nice that Democrats are getting a taste of district court overreach.
10
Adler and Gluck are on solid ground in excoriating this horrendously incompetent judgement by partisan judge Reed O'Connor
As I understand it the individual mandate has not been eliminated from the ACA. It is only the penalty for not enrolling that has been eliminated. The individual mandate still is part of the law. So the argument that because there is no penalty being enforced, therefore the entire law is invalid is flawed legal reasoning. Let us say that the penalty for not enrolling in the ACA were $.01. Would the law then be valid?
O'Connor has sullied his reputation with this disastrous ruling. How can anyone take his judgements seriously after this? He has revealed himself to be a partisan flack for his Texas red-meat Trumpsters.
33
MEDICARE FOR ALL: 2020.
If not now, WHEN ??? This is a guaranteed winner, and game changer. Just DO it.
31
ObamaCare passed 60-39 and 219-212.
The Trump Tax Giveaway to the wealthiest Americans passed 51-48 and 227-203.
5
I'm always amazed when liberals trot out this type of commentary, and then criticize conservatives when they make the same comments about abortion or gay marriage or what have you. For either side, the Court is your friend and "upholds the Constitution" when you win, and is "full of activist legislating jerks" when it doesn't. The problem is twofold: one, we give the courts (and the national government) too much power over our lives; the second, is that we can't seem to live with each other despite our differences. Both can be fixed if we have the will to do it and let the better angels of our nature take over.
7
This ruling is just a taste of what's in store for us as more and more right wing ideologues without real judicial qualifications are rammed through the senate by the Machiavellian Mitch McConnell. The Man Without a Chin and his troupe of Men Without Spines are enshrining anti-majoritarian rule in America for generations to come. We are well along the way to becoming just another banana republic.
31
I know what these right wing fox zombies are thinking. Trump does something outrageous that the court in San Francisco stops. Right wingers then call the court there partisan. Not bothering to consider how illegal and unamerican the original action was. This then brings us to Texas where the judge now thinks it’s his duty to play a partisan game. Sadly this insane behavior keeps happening because the Republican Party has lost its brain. The adults have left the room.
17
Not really surprising. I third rate lawyer from a fourth rate law school (South Texas College of Law). Basically, nothing more than a political hack.
And the charge was led by Ken Paxton, Texas' right-wing AG, an evangelical zealot who has been under indictment several times.
30
Judge O’Connor is getting his 10 minutes of fame and millions of Americans will endure more precarity in their lives.
15
Well, he's a republican judge in Texas. Why would any rational person think that a Texan conservative would base his ruling on anything but partisan politics?
The republican efforts in Wisconsin, Michigan, North Carolina and Texas all have one thing in common. Each state conservative element, political and now judicial, pervert the law in order to further their political agenda.
The answer to this republican over-reach is pretty straight forward. Yes, vote the bums out, but that won't address the core red voters who endorse republican subversion of our laws-based system of governance.
So send a message to the red states who subvert our nation. Boycott them. Don't vacation there. Don't travel there. Try not to purchase products from companies who are headquartered there. Don't attend conferences there. Boycott them.
29
Call your member of Congress Monday and insist they get moving on the Medicare for All plan many democrats are supporting.
This assault on the health and survival of the American people must stop.
We need Medicare for all, now. If we don't do that, this nastiness is going to go on and on and on. Millions of people are at risk of death or disability or financial ruin while the GOP and far right keep playing politics with healthcare, threatening people's lives.
Enough! Enough! Enough!
12
Voice from Texas: We have a school system which is almost (financially) bankrupt in Texas. How was it then, that the Texas Attorney General was permitted to use taxpayers' money to lead the charge to eliminate the Affordable Care Act?
17
Here we have judicial activism by a conservative judge, declaring all of the ACA unconstitutional even though the congress couldn’t get rid of it. I await all the handwringing by Republicans about the horrible sin of judicial activism. Or is the action of unelected judges only a problem if it’s a decision that Republicans don’t like? I think we know the answer.
58
This illustrates the point that Trump's comments about "Obama judges" was really not too far off the mark, even though applied to the wrong Party. Without a doubt, many judges appointed by Democrats have basically liberal views and many, if not most, or virtually all, judges appointed by Republicans have generally conservative views. But almost all of them understand and respect the law and follow it to the best of their ability, even when they are compelled by it to vote against their own personal views. But not this one.
This is clearly a case of an unqualified Republican judge trying to usurp Congressional power and legislate from the bench, based solely on the basis of his hard right ideology with a totally inept attempt to disguise it as a legal ruling. No matter where one stands on the issue of Obamacare, this is offensive and appalling. He brings the whole judicial system into disrepute.
51
Funny how the narrative is upended when the GOP is in power.
Suddenly, deficit spending is not only acceptable, but instead, the preferred way of passing a massive tax cut for billionaires.
Oh, and as for "activist" judges. Weren't those all a bunch of publicity-seeking liberals?
38
It's been all bad news from everything from health care to the environment since Trump cheated his way into the presidency. I wish there were some bold politicians who could get us out of this nightmare, sooner reather than later, It keeps getting worse and worse with each passing day. I fear there won't be any more days to pass very soon.
23
Congratulations Republicans! Your rabid fixation on the ACA just caught up to the bus. Now what? Your aging base talks a good game, but let’s be honest; they are totally focused on what’s-in-for-me. And now they will see their worst nightmares realized. You actually delivered on what you told them you would do. Your only hope is that their loathing of immigrants outweighs their fear of getting sick and going broke.
Where are the game theorists in the Republican Party? This issue isn’t going away. It’ll be an issue in the 2020 elections and thanks to this decision it’ll have even more impact on the decisions made by the electorate. And chances are, in the next go-around, we’ll be pushing universal health care to the front of the line. I’m pretty sure it could not have been done without the Republicans victory on Friday. Congratulations Republicans.
38
Who would have thought that a Judge would be so tribally partisan (republican) as to violate the norms of justice, and misinterpret the intent of the legislative body, the wish to allow a system of healthcare coverage that the disadvantaged poor couldn't afford otherwise? Who said we don't have swines in the Courts, exceedingly arrogant in exercising their power? Has the 'golden rule' become obsolete to you, Judge O'Connor?
20
This is what happens when you have a party that displays utter disdain for the rule of law. Judges should not be rewriting laws. It was obvious that the Republicans wanted to weaken and cripple the ACA while handing big tax cuts to their donors. Having a for profit health care industry displays the problem of allowing avarice to hollow out life sustaining services to a country's citizens. ( By the way whatever happened to Trump's initiative to lower drug prices? Big Pharma, which has raised insulin prices by over 1200 per cent in the last 20 years, and pharmacy benefit managers, continue to treat patients as cash cows that must be drained). I guess if you're healthy or rich the American Dream is your right. Not so much for the laid off auto workers in the states that trusted Trump and the Republicans. Why can't America be best?
15
Even further down the rabbit hole, doesn't that mean that your own federal court judges are recognizing your current federal government as invalid and incapable of rendering legislative decisions? And thus defaulting to the last valid elected government who touched the law, from 2008? (Or 2012, conceivably).
Either decide that this election isn't good, or don't. But it can't go both ways. People can't have their cake and eat it too.
1
The inverse of the 9th Circuit. Judges should be restrained in overturning the elected branches of government.
5
What have we here? Legislating from the bench? A radical judge imposing a political agenda over the will of the people? I thought only Democrats did that...
16
In the fall of 2016, I looked so forward to peace because Hillary Rodham Clinton was clearly going to be elected. I was going to stop reading the major news orgs commentary. From 6 hours a day to 1 hour a day. Yes the GOP operatives would still want to rehash again and again previously cleared of criminal conduct investigations. They still are incomprehensibly. Back then,I thought thegovernment would under Clinton be so subjected to the law as her expertise
The corruption of decades of Trump Enterprises and their whole family's glaring incompetence, inexperience and major conflicts of interest to be unelectable.
The Fox and the Hounds won by shocking all of US.
7
Judge O'Connor debating whether Obamacare works without the individual mandate, which it doesn't have any more, reminds me a lot of the people debating with Frederick Douglass over whether African-Americans had the intelligence to live as free people.
12
Thirty million people who did not have health insurance before had it because of ObamaCare. All 330 million Americans could no longer be denied coverage because of pre-existing conditions and insurance companies could no longer charge them premiums in the tens of thousands of dollars.
Millions of people were able to get blood tests and annual physicals and hundreds of thousands learned they had some form of cancer, heart disease, high blood pressure, diabetes, or other ailments and have received treatment and thus their lives were saved. Lives that would have been lost were saved.
For all those who had medical insurance from their employer or who worked for a local, State, or the government this did not cost them one dollar more in their monthly and annual premiums. No one who had insurance before ObamaCare was the slightest bit disadvantaged.
I have seen a lot in my life but this makes me physically ill. The cruelty of our so called President and his Republican lapdogs celebrating this judge's decision is cruel, spiteful, and is a terrible stain on our nation.
How can any normal person who has even one ounce of decency celebrate thirty million Americans losing their health insurance? Have we stooped so low in our nation that we rejoice when others and their families are hurt? Have we allowed cruelty to rule the day?
I am ashamed of my country.
65
The Federal Judge in Fort Worth, U.S. District Judge Reed O’Connor, for the Northern District in Texas, was a 2007 George W Bush appointee and is identified as conservative. What else needs to be said.
8
This about Abbe Gluck in Above The Law on the Yale Law School's
endorsement of Bret Kavanaugh:
In addition to Profesor Amar’s op-ed, the school quickly issued a press release gushing about Kavanaugh’s nomination, filled with quotes from Dean Heather Gerken describing him as a friend, Professor William Eskridge describing him as “one of the most learned judges in America,” and Professor Abbe Gluck scolding any Kavanaugh critics by gravely noting that “politics have deeply harmed our Supreme Court nomination process.”
2
The GOP does one thing very well; it ruins things that help people. They destroyed unions. They allowed unfettered monopolies to develop, stagnating wage growth. They gerrymandered voting districts to pervert our voting power. And now they don't want us to have any health care choices.
How they continue to get elected is beyond me, but when you realize that the people in Congress are (mostly) wealthy, you do understand why the results of their actions never, ever touch them.
30
Require that the president, the WH Staff, Congress and their staff all use ACA and I can guarantee that they'll figure out a way to make it fantastic.
7
Trump praised the decision and claimed the republican ACA will be cheaper and better. There is just one incorrect word in this sentence. The word claimed should be replaced by the word lied.
10
Now that the liberal progressive have a counter balance in the Supreme Court they are not quite as willing to earp for this ruling. ( pun in tented) Yes the court is kinda funny this way but the hypocrisy of the left is tiresome. The dems crammed the ACA down the republican's throats and it was such a fun victory for them that they lost the presidency. The Supreme Court is looking much more balanced these days. Brett K will not soon forget the attack on him and his family either.
6
Forget the Supremes for a moment. The Republicans are packing the federal bench with like-minded activists who are motivated by the belief that corporations have rights superior to citizens' and by religious beliefs straight out of the Inquisition.
17
Perhaps Judge O'Conner has artfully contrived to bring himself to the attention of the person who will fill any vacancy on the Fifth Circuit bench.
6
What few Americans understand is that, through a number of gimmicks & subterfuges, YOU pay every dollar of your health care. Start with the employer contribution. If a company's HR dept. decides it can allocate $100,000 gross to fill a job, they first deduct from that the amount the company will cover of your health, benefits like paid sick days & paid vacation, etc. Perhaps that covers $20,000. So they offer you a gross starting salary of $80,000. Hidden from you is that some of the money HR allocated for your job is already removed before you are even offered a "gross" salary. Then through "externalizing" health costs to include elements like yearly deductibles, paycheck deductibles, copays, annual & lifetime limits, out-of-network costs, & limited formularies of meds (in multiple tiers of copays), they shift the rest of your health expenses on you. So, one way or another, HR has rigged it so you pay EVERY DOLLAR of your health care. This averages about 19% of GDP per capita. Single-payer systems have you pay for all of your health care through taxes, usually costing you between 10 & 11% of GDP per-capita. So single-payer uses only taxes to cover your health care payments from you, but offers consistent care to all at about half the cost you pay in America.We have been so conditioned to hate & fear the word "taxes" that we don't understand that, for every $1.00 that comes out of your pocket, a French person pays $0.50 in taxes for an all-inclusive system.
24
This is yet another example of the Republican political spite, for getting even with voters who cost them their virtual stranglehold over who gets to call the shots at the state and federal levels.
For now anyway, it looks like the 99% will remain behind the 8-Ball, no thanks to Republican federal judges, and lame-ducks in State houses and the Beltway who seek political vengeance on the Democrats who will replace them, by running whatever interference they can get away with, thereby emasculating any new agendas that threaten their status quo.
6
Where else but in t-x-s; the single biggest thorn of the last few decades to anything close to a functioning, democratic government. They're against gun control, and almost everything else.
They, it makes me ill.
7
Who knew health care was so complicated?
8
Judge O'Connor dealt a blow to Republican prospects for 2020. The fate of the ACA will be in limbo (thanks to the 20 red states) for the next 2 years. Dems can use that against the Republicans. If Dems can win all three branches, they may be able to pass "medicare for all." That would be a welcome relief to the electorate after all the drama.
49
No judge should be allowed to serve in capacity for more than 30 years.
The GOP demanded term limits 40 years ago as a way of diluting experience. Why not judges? Is a constitutional amendment needed or can congress enact a law?
1
I remember a story about Michael Jordan being asked why he wasn't more active politically like other superstar athletes. He responded that Republicans buy shoes too. What the Republican state AGs, Trump, and this activist judge in Texas need to realize is that Republican voters are not immune to pre-existing conditions and for most great health insurance is not a given. This hatred for the ACA because of its association with the first African American president hurts Republicans as much (or maybe even more than) Democrats. The last election would seem to indicate that voters understand this better than these politicians.
35
Bottom line: Americans that don’t have to pay into a system won’t and their inability to pay their medical bills will be passed on to those that do pay, no matter what the outcome of this ongoing “party’ fight regarding healthcare.
Someone will ultimately pay for the cost of healthcare.
I did not pay into social security for 14 years. There is a law called windfall elimination penalty which penalizes me each month with a deduction from my social security- some $300, but yet I earned more paying into social security for 24 years.
I was told my penalty is because I did not add to the fund for which everyone must contribute? Therefore they penalize me for non contribution.
This healthcare issue seems to be the same type of argument. Someone correct me if I am wrong.
I might just start to whine about my Windfall Elimination penalty.
1
Is anyone saying that Sen. Collins should face any consequences for this decision, as if the Kavanaugh confirmation is not enough? The fact is that although Collins claims she supports the protection of those with preexisting conditions, she also voted for the tax law that gave Judge O'Connor the fig leaf he needed to strike down the entire ACA, preexisting conditions protection and all. Is anyone going to add this to the reasons why her claims of moderation should not entitle her to reelection in two years.
21
This is a sensibly reasoned piece that points out every SC Justice should strike down Judge O'Connor's ruling without question if they were to go by their past rulings and opinions. The problem becomes that at least half of the court is so partisan in their rulings that almost seems that past rulings and their legal opinions mean nothing to them when it comes to knocking down laws passed or backed by democrats, a party conservatives and their judges love to hate. This is evident on such issues as Citizen United which was also a dubiously decoded law, and the throwing of the 2000 election to Republicans.
But the real problem is that partisanship is destroying our rule of law as very few seem to trust the rulings of judges or a GOP Congress that uses constitutional principles as if they do not apply to them. Remember Judge Garland. Judges and Justices have been creating law from the bench for decades so why should we depend on them to do the right thing now and stay out of the Congressionally approved ACA?.
15
Now that the Senate confirms judges with a simple majority, is there a more effective way for a judge to improve his chances for a promotion than issuing hyper-partisan rulings while on a lower court?
14
I think it's fair to wonder whether the "lifetime" term enjoyed by federal judges is facilitating exactly what the framers hope to avoid: a politicized federal judiciary. Rather than guarantee political independence, the stakes are raised so high, since the appointed judge will be there for life, that a judicial nominee's partisan score is key to appointment and confirmation.
7
@Glenn W. Smith and were you wondering this when the liberal justices were appointed. Don't worry we know the answer.
Forgive my pessimism, but it seems entirely plausible to me that the Republicans and their appointed judges will throw out the Affordable Care Act in its entirety, stripping millions of people of their medical insurance virtually overnight.
As somebody who is personally dependent on the individual market for coverage, I don’t say this lightly. It wasn’t long ago when this lawsuit was considered the longshot of longshots. Indeed, it’s still fresh in my memory that the Republican-controlled Congress nearly repealed Obamacare and replaced it with it nothing of any value.
To get my point, one need only consider what hardship the Texas-led group who filed this (successful, for the moment) lawsuit were willing to inflict on their own citizens. The Republicans’ callousness in this and other areas should be quite obvious by now.
43
@GV I'll forgive your pessimism, but the scenario you laid out is thankfully an unlikely one - for reasons well-explicated in this op-ed. This was a single judge's decision, and he made it in defiance of well-established legal protocol. Despite the GOP's myriad attempts to stack the bench with extremists, they've failed to do so with regards to some of the nation's most essential functions - health care topping the list. Chief Justice Roberts personally wrote the decision upholding the ACA, and despite this attempted sleight of hand by a (much) lower court, there's no rational reason he'd let it stand. Even Justices Thomas and Kavanaugh are outspoken against judicial actions of this nature that in effect nullify laws that are perfectly sound. (The judge in the case believes the individual mandate is unconstitutional, but not the rest.)
Further, as the GOP discovered for itself less than two years ago, "repeal and replace" may sound "catchy," but in practice it's a nearly impossible feat -- at least if they maintain coverage for preexisting conditions. (Which they will: doing otherwise would be political suicide. Even Trump knows that much!)
7
@Jeff
I once had your confidence in the rationality of our political and legal systems, as it were. But that was before Citizens United and other hitherto unthinkable actions by our elected and appointed leaders on the right. Donald Trump and Mitch McConnell, among many in the GOP, would have no trouble with the collapse of Obamacare because they could blame the Democrats for not collaborating with them on a so-called solution. And besides, it would be the courts rather than Congress doing their dirty work, just as they did eviscerating the Voting Rights Act. The Republican base wouldn't mind it one bit, of course. Let's hope your analysis is correct and I'm wrong.
8
What I find remarkable about this and nearly all coverage of the ACA is the lack of a clear explanation of the need for a mandate. Absent some incentive to buy insurance, there can be no market for health insurance. The pool of insured will be biased toward people who perceive themselves to need it, rates will trend up, and the thing is in a death spiral.
The judge is absolutely correct, and the Republican congress killed two birds with one stone: They got rid of public health care (which only when it's too late will their constituents realize), and made their uninformed constituents happy by getting rid of that annoying penalty.
If the Democrats succeed with their suit, it will only mean insurers will go broke & out of business. The only real solution is to change congress and reinstate a meaningful penalty for being uninsured yet able to afford insurance.
5
@Doug Fuhr Your analysis of the policy is absolutely correct, but irrelevant to the article. The point is not whether abolishing the mandate is good policy, it is whether that made the statute unconstitutional. Spoiler alert: It did not.
9
@Doug Fuhr - if Democrats succeed, as they should against this wild judicial activism, and if the mandate is gone, insurers will raise their rates in order to be able to offer plans without going broke.
What's remarkable about a lot of the coverage of the healthcare law this year is that for 2019, rates were stabilized in many states, despite the Republican meddling having the effect of raising the cost of all ACA-compliant plans 6% over last year.
(as mentioned near the bottom of the linked article)
https://www.kff.org/health-costs/issue-brief/tracking-2019-premium-changes-on-aca-exchanges/
1
The need for the mandate was simple. It forces people who won’t use the insurance to pay into the pool, lessening the risk to insurance companies for insuring all the preexisting conditions and others who cost the companies a lot of money. If you want coverage for people with preexisting conditions at affordable prices, you need a massive pool of insured. That is what the individual mandate did.
And since 90% or more of the people who were forced to buy or pay the penalty will one day be in the sick category too, it’s not unfair.
14
Listed in the article as one of the features of the ACA: "the ban on pre-existing conditions". Journalists (and others) seem to be getting a little lazy about substituting "ban on pre-existing conditions (which sounds negative) for what the ACA actually did which was ban insurance companies from not accepting people with pre-existing conditions (which is a positive thing in most peoples' minds).
This lack of clarity does a disservice to the news-consuming public who may be confused by it. We don't need to be any more confused than we already are!
14
The authors repeatedly appeal to what they call "the rule of law." As law professors, they should know better: there is no rule of law, only the rule of judges. And -- although the press refuses to report judicial fraud -- there is plenty of that happening in courts. To get the result they want, judges routinely invent utterly bogus argument on behalf of the parties, and make ruling based on that, rather than on actual argument of the parties, as "due process" or the "rule of law" implies. Devoid of any effective public oversight, judicial decision-making has become a thoroughly Kafkaesque procedure that boggles any rational mind; obstruction of justice is a routine judicial procedure.
Solution to the problem of arbitrary judging that is based on judicial fraud? Report it, journalists; don't turn a blind eye to the absence of "due process" as you do now...
3
Federal judges enjoy a generous federal healthcare plan, as do
federal legislators.
It is horrendous that many of these same folks, receiving not only their government healthcare plan but a government paycheck, have the audacity to deny poorer American citizens the ability to afford healthcare insurance.
Having given the wealthiest Americans an additional tax cut, they now decry any expenditure for the poor. They make a mockery of justice and public service. What is the purpose of a just government if it is not to help the people?
23
The Supreme Court Justices read the newspapers, and also pay attention to electoral results. With the Blue Wave having crested just last month, and more bad electoral results for Republicans on the horizon, for the Roberts Court to permit this outlier district court decision to become the law of the land would be a suicidal exercise, undermining its very legitimacy. The A.C.A. is becoming the “fourth rail” of American politics.
11
Democrats file appeals in the 9th circuit to stop Trump particularly on enforcement of immigration law. Republicans filed in Texas against Obama particularly challenging ACA.
That is the state of the divided United States. One is no more or less lawful or lawless than the other and it's all about raw power.
3
@CNNNNC Democrats can only file an appeal in the 9th circuit from a district court decision that is under the 9th circuit's jurisdiction. The reason that so many cases wind up in the 9th circuit is it's size, not forum shopping. The 9th circuit covers roughly 20% of the U.S. population.
It seems that every time am event goes another way than people of a certain slant see it go, it is called a crime. The Republicans stole the Supreme Court seat. No. They used the rules that the senate had established to delay the nomination. Now a judge has committed a lawless act. No. He ruled within his judicial authority. When this gets to the Supreme Court, they will rule within their authority. In any case, there are very few unanimous court decisions. It doesn't mean either side is promoting a lawless opinion. So just because a person, who is law professor, claims that those who think differently than he/she think, doesn't mean its lawless. It carries no more authority than a guy debating this with someone sitting at a bar somewhere. It’s an opinion, nothing more. Maybe when they grade papers, the professor is the law, but that's it.
9
I disagree. When I was between jobs, having left a big design agency and was doing freelance work in 2016-17, I did not have health insurance for a few months, for which, thanks to this Obama law, I was FINED! I like Obama’s style and consider myself to be liberal-leaning but I don’t believe it’s the governments place to punish people for not having coverage nor do I think it’s American.
4
Actually if Congress left out the severability clause, which was much discussed at the time and even thought to be the reason it was passed (some people voting knowing one provision will be knocked down killing the whole thing.) it up to Congress, not the Courts to correct the error. When the penalty was zeroed out everyone knew what that meant in the context. Yet the penalty was zeroed out as a back door way to kill the bill without having to take an explicit stand. But political cowardice does not negate that actual act of legislation. Having the Court save defective legislation no matter how good it is stepping outside the Court's role. Let Congress save what Congress wrote. Everyone saw this coming back in 2010 and just crossed their fingers. Well maybe they should have been paying attention. It sounds like the rule of law actually was upheld if one means that means making legislatures take responsibility rather than hoping the Courts will uphold or strike down.
My nephew, A 40 yr old single parent of 3 making 55k was forced to pay $1400 monthly premiums with a $4000 deductible each with 20%copay when Obama care was in full swing. This Judge is right, the Government should not be allowed to foist this on anyone.
I would wager this Judges decisions aren't regularly over turned as the liberal 9th circuit guys.
4
Isn't it odd that those Republicans who constantly scream "judicial overreach! and "activists courts!" go silent when one of their own issues edicts such as this?
10
Republican laws, Democrats laws. Rich people laws, poor people laws. President above the law. So many laws down there.
The one good thing in this is the judge in Texas may have inadvertently pressed the accelerator on the Medicaid for all path. It’s 2019, not 1819, US should have universal healthcare. Absurd and inexcusable that this is not already the case.
15
@M
Why do 750,000 Canadians buy American healthcare insurance if Canada’s socialized system is so good? Why does Canada send people to America for treatments if your facilities are adequate? The socialist in America want Medicare for everyone, not Medicaid.
This ruling shows what will happen to the courts if Mitch McConnell meets his goal to stuff even very unqualified ultra-conservatives into every available vacancy on the courts.
WHY is Mitch McConnell assured to retain his position as Majority leader of the Senate? Is he that crafty and powerful or have the other Republicans in the Senate just ceded all that power to him? Don't they believe their own criticism of the Senate and how disfunctional it has become?
4
Want to know what else is raw judicial power? Creating a right to abortion out of thin air. Doing the same for gay marriage. Saying that a president cannot rescind the unconstitutional DACA. Saying that a president does not have the authority to limit immigration even though statutes clearly give him that right.
7
@Jake
Want to know what else is raw judicial power? Denying a right to abortion out of thin air. Doing the same for anti-gay marriage decisions. Saying that a president can rescind the constitutional DACA. Saying that a president has the authority to limit immigration even though statutes clearly do not give him that right.
Jake, your comment “out of thin air” disrespects the serious considerations that issue has been given for 40 years. The rest is an exercise in “whataboutism.”
8
Yet we are all MANDATED to pay for these all the MIC instruments of death with our taxpayer dollars. We need to dictate how we wish our taxes to be deployed: guns or butter?
The "defense" (another orwellian jewel) department budget is gargantuan and provides "welfare" to the MIC war manufacturers. They would have you believe that it's to protect the public and keep everyone "safe." I don't see the same concern in keeping millions of Americans TRULY SAFE by covering their medical needs.
4
The “penalty” was not ruled constitutional. Roberts contorted it to be a “tax”, that made it legal. Congress used a maneuver to eliminate the “tax”. Since the ACA clearly relied on this income to support this program, the program can no longer exist. Kavanaugh opined in his opinion before the Supremes looked at the law that a tax would have made it legal. All congress has to do, is pass a tax. This time, the vote will have to be bipartisan. If not, Roberts and Kavanaugh cannot change the wording of a penalty now, because that form of funding by any other name no longer exist.
1
@Jay
The article said ACA’s existence is not based solely on the tax. So the program can exist.
The GOP HATES giving affordable health insurance to people because it limits the profits their corporate masters would make ripping them off.
4
You don't suppose Judge O'Connor has aspirations of a loftier bench upon which to sit? He has certainly caught the eye of the man that can make it happen.
9
As I read comments here and from the other opinion article: "A Partisan Ruling on Obamacare" concerning the impact to people with pre-existing conditions or who are unable to afford reasonably good (useful - actually pay much of the medical bill!) health insurance I want to scream at the GOP that they and their wealthy benefactors are vicious "animals." Then, I realize, the animals I know or have read about wouldn't treat their breed so mercilessly, so heartlessly, so cruelly. Greed and increasing the wealth of a very small minority of benefactors has diminished the Republican leadership's compassion or empathy for most Americans. The GOP needs to lose even more congressional seats in order to be forced to examine and rebirth itself as a genuinely caring conservative party.
11
Unfortunately, we should expect more of these nakedly partisan but poorly reasoned decisions. While these types of judges have always found their way to the bench, Mitch McConnell is actively stuffing the federal judiciary with right wing robots validated by Leonard Leo of the Federalist Society.
Of course lower court decisions can be appealed. But the Appeals Courts and even the Supreme Court are being stacked with ideologues in black robes. An illegitimately elected president has appointed dozens of judges and two Justices. The latter needed the rules changed to be seated. And Brett aka Bart aka Boof Kavanaugh, only slid by after a sham FBI investigation and sham hearings.
Republicans seem intent to govern despite the will of the people. They’re magnifying their minority popular support with dark money, voter suppression, gerrymandering, propaganda from the Fox and Sinclair TV networks, and even Russian election interference. The newest twist is sore loser legislation in lame duck sessions.
With the help of a rubber stamp judiciary, Republicans expect to validate their partisan power grabs. Unless disqualified or otherwise removed, these judicial appointees have lifetime tenures. And Republicans seem certain to obstruct future Democratic appointees.
Somehow we need to restore a truly representative democracy with a trusted judiciary. That’s not the path we’re currently on.
8
Obamacare was never Constitutional.
Obama refused to call the mandate a tax just to pass congress.
Yet before the Supreme Court, even though the actual words in Obamacare stated otherwise, Justice Roberts decided to call it a tax.
Now that the individual mandate is over Obamacare is laid bare to its inherent unconstitutional core
5
Healthcare is insuring the person, that is, the corporation, is healthy. As Greenspan foresaw, deregulated economic financial markets must rule in the United States, and as the Healthcare Industries are like any business they should not be regulated by the government or indeed by any altruistic malarkey found in Medicaid or Medicare or The Affordable Care Act. Meritocracy, the basis of Class and Wealth Divisions in America, must likewise carry through to healthcare. As the Republican God Ayn Rand might put it, “One is only eligible to the healthcare for which one can directly pay. The government is not to interfere in illness or death.” As Ronnie stated, "In this present crisis, government is not the solution to our problem; government is the problem."
Let’s put this issue of healthcare into a cinematic context. Imagine Rick and Ilsa and Victor, all very ill, standing at the entrance to a healthcare clinic, which none of them can afford because of losing their jobs, and homes in the next recession. Rick turns to Ilsa. He first coughs for five minutes because of his severe pneumonia, and then he says in a hoarse whisper
“Ilsa, I’m no good at being noble, but it doesn't take much to see that the problems of three little people don't amount to a hill of beans in this crazy world.”
Victor and Ilsa cough wretchedly and nod as a slight fog seems to descend. They all three turn, step off the curb into the crosswalk where they are struck by a bus unseen in the fog.
4
"It’s not based on a solid legal argument. It’s an exercise in raw judicial power."
Isn't this exactly what Trump supporters say (and believe me I'm not one) when court rulings challenge his policies?
7
Why don't we go to a system for health care like we have for retirement: Social Security, which is a single-payer system?
Can you imagine if Social Security didn't exist? Can you imagine if all you had to rely on for your retirement were your IRA or 401k or company pension plan? And what if you worked for TWA or Enron, or were employed by a company represented by the Central States Pension Fund? What would you fall back on if these companies suddenly failed?
Well, at least you'd have Social Security. So why can't a single-payer plan work for health care as it does for retirement? And it doesn't have to be a gold-plated health care plan any more than Social Security is a gold-plated plan for retirement.
We're not talking about free brain surgery for the homeless, just the basics. But why does that have to be so hard? In retirement, if you want more than Social Security, you invest in stocks, bonds, your IRA or 401k.
And when it comes to one's health care, so-called Cadillac plans can always be made available to those who can afford them. But it's time in this country to stop having the poor subsidize health care for everybody else by asking them to do without. It isn't fair, and it isn't healthy.
11
The lower court will overturn this rule. It won't make it to the Supreme Court.
1
The Supreme Court found the individual mandate to be constitutional. That is settled law, or as close as we get in this country. So what is unconstitutional of Congress's zeroing out the penalty. Fix that and we can leave the law alone.
4
Wait, what? If the first law was constitutional, but the second law made it unconstitutional by a very specific act, wouldn't it be the second law that was unconstitutional?
4
@Kevin McGowan No - what was at issue, and found constitutional, in the first case was removed in the amendment to the law. The provision removed for 2019 is the only basis under which the law could be found unconstitutional, according to the outcome of the case.
@Nate A
"removed" sounds like something substantial was done, when, in fact the only change was the amount of the penalty. It's not like anyone decided that charging a penalty was illegal (or immoral, or anything else that could substantially change the effect or validity of a law).
This seems to be a bit like declaring the death penalty illegal, and so declaring unconstitutional all laws that included the death penalty as a possible consequence.
Using the judge's logic, it would seem that when Congress eliminated the penalty that was the unconstitutional act.
8
People want health insurance....but don't want to pay for it. They don't want to pay for pre-existing conditions, but want it for themselves.
How ironic. Democrats actually created a provision where people had to take some responsibility for the cost, and it is Republicans who are telling their base that it shouldn't cost them anything.
24
The ACA is a complicated conglomerate put together to provide health insurance for all Americans who wanted it. The tax penalty provision was to encourage people to sign-up. Not a very good idea. Instead the law should have stated no insurance no subsidized care entitlement. You are on your own. Suggest that we expand Medicare to all without regard to age.
8
@Indy1
I think it needs to be more explicit, kind of like the warnings found on cigarette cartons.
2
See now why the GOP puppets of the Oligarchs are trying to destroy the US judicial system? So Congress can just be the political playground for the Human Turtles and Ayn Rand-believers who simply enrich the wealthy and harm the suffering.
Congress can no longer make policy, or laws, even if it were not hopelessly gridlocked by the likes of McConnell and Ryan. The "Courts" have said so.
Nothing can change, in a peaceful way, what has happened to this country. All of the institutions that allowed for peaceful change are gone, hopelessly broken, corrupted, and rigged - owned by the Oligarchs and Corporations:
Courts and laws, and law making
Law enforcement
The free press
Elections
Representative government
Policy making
Unions
Regulation and enforcement
One by one they have fallen, leaving no recourse except to do what we are seeing in France, right now. No one (except the Steve Bannon's) advocates for revolution, but take a look around. It's come to that. Sadly.
12
@Van Owen:
Clearly you ARE advocating for revolution, so why are you pretending not to.
Capitalism is a bad system, but its bad the way that democracy is bad- that is bad but better than any alternative system, including Marxism (doesn't work) and anarchism (stupider and doesn't work).
So you keep working on your dialectic, keep trying to recruit your fellow travellers and innocent dupes- It didn't work the first time around and it won't this time.
The Republic will survive the evils of both Trump and you (Trump is of course more dangerous)
Isn’t the starting place of the validity of a law the authority of enacters of the law to enact the law? Many federal laws are based on the Commerce clause which gives Congress the authority to pass laws to prevent restraint of interstate commerce. Yet the ACA is based on Congress’ authority to tax and not on the Commerce clause according to the a Supreme Court. So if the ACA is not a tax law, all the other provisions be based some other power granted Congress. As I see it, unless each provision involves interstate commerce, the provision lacks Constitutional authority and the Texas judge is right.
2
@Texan No, only the imposition of the individual mandate was based on the tax authority of Congress. That provision no longer exists in the law. That means there is zero basis for the judge to rule against the remainder of the law.
2
Except that applies solely to the mandate, and nothing else.
Healthcare in America will always be more expensive while covering fewer people than every other OECD country until our healthcare industry is subject to at least some basic regulation.
Should the Democrats every overcome the many structural disadvantages in our electoral system and regain a majority, correcting the obscene advantage the healthcare industry has over consumers, should be their highest priority.
18
@Paul Mc
"Healthcare industry" should be narrowed down to "health insurance industry."
Govt requires calorie labeling or posting for a consumers descision making process. Ask yourself why you can’t find out what a medical procedure cost if you don’t have insurance? For a series of blood test, my insurance company shows a bill of $450.00. My insurance company allows 45 bucks, and I owe $10.00. Nobody is losing money in these transactions. Posting realistic prices would allow shopping. Why won’t congress act?
9
@Jay 10x seems to be the multiplier. The bills for my recent cardiac ablation totaled $150k, the insurance company's "negotiated rate" was $14k, so the insurance company still came out well ahead. Requiring prices to be listed would be a big step forward.
3
I am truly proud of Professor Adler, my former Professor at Case School of Law, for writing this scorching piece! He was known as an excellent professor then, with a reputation for just this sort of analysis. Amazing!
7
The GOP has never, ever wanted judges to "apply the Constitution as it's written". It always and forever wanted judges who would, overtly and without apology, legislate from the bench. They want judges who will overturn legislation they don't like. They don't much care about the legal arguments one way or the other. They got one in TX.
15
All articles that discuss the ACA should remind readers that the law doesn't just cover the insurance policies you can buy from the exchanges.
The ACA mandates that ALL insurance policies cover certain basic things, such as free preventive care; pre-existing conditions; and emergency room visits. In addition the ACA mandates that there is no lifetime maximum for care (if there were, people with very expensive illnesses would run out of insurance at some point in their lives). It mandates an annual maximum out-of-pocket expense, which means most people aren't bankrupted by healthcare costs.
Think about all these things we will lose if the ACA is overturned.
It is absolutely sick that the people who advocate overturning the ACA - this judge, the Republican politicians, the Republican attorneys general - have excellent healthcare provided by the federal government or state governments. Their healthcare is paid for by the public! As employees of the public, they have nothing to lose by overturning the law.
How would they act if they had to buy their insurance, their spouses' and children's insurance, from the individual marketplace?
38
Comprehensive medical health care coverage for all Americans, without any abridgement or denial of coverage due to pre-existing conditions, must now be enshrined in law as a fundamental right for every American citizen and furthermore should no longer be dependent upon medical insurance coverage offered by the few corporations and other employers in the United States.
Lack of this coverage merely confirms a death sentence upon those Americans (men, women, children, elderly) who are unable to afford preventative care as well as treatment justified by medical necessity.
Let those who would deny comprehensive healthcare coverage themselves and their families be denied complete coverage. The rest of us have already been paying for their coverage with all of the tax cuts for Billionaires, CEOs, Corporations-on-Welfare who have obtained billions of $$$ through specious tax exemptions and subsidies as a condition of their ephemeral and predatory "presence" and practices in different states.
20
@Chromatic
It’s a constitutional law issue not a public policy issue but then again that’s the problem. The liberals think judges should base their decisions on what they think is good public policy.
5
That’s not what this specific piece of legislation is about. If you turn down the volume on you liberal radio and actually listen to the other side you’ll realize this is about the <> in which healthcare coverage is readily available not whether or not people deserve it.
This is an excellent analysis of why this ruling is likely to be overturned on appeal. But I'm afraid there's a deeper problem here—and that's the fact that the Constitution does not specifically give Congress the power to enact legislation to promote the general welfare. Instead, Congress must rely on the Commerce Clause to justify all types of beneficial federal legislation to improve the health and safety of the public and to protect the environment. With the Courts stacked with Federalist Society judges there's no guarantee that the Commerce Clause will be interpreted liberally anymore. Because of this, if we want to ensure the Congress is able to pass necessary and beneficial legislation, we need to amend the Constitution to explicitly give Congress the power to enact legislation to promote the general welfare.
12
@617to416: The Commerce Clause empowers Congress to intervene to block all cut-throat state-eat-state competition. The states work to undercut politicians who would employ that power to equalize protections of the law nationally.
4
"How can a court conclude that Congress never intended the rest of the statute to exist without an operational mandate, when it was the 2017 Congress itself that decided it was fine to eliminate the penalty and leave the rest of the law intact?" No more need be said.
17
Christmas has come early for the Democrats.
1) In the recent election, many Republican candidates changed their positions and campaigned for affordable healthcare.
2) The Democrats are now in control of the House.
3) House Democrats will formulate and introduce legislation calling for an improved, more robust, and more effective Affordable Care Act.
4) All Republicans, both in the House and Senate, will have to take a stand.
15
If this decision is not immediately overturned on appeal and does end up going all the way to the Supreme Court, it seems very unlikely that Chief Justice Roberts would allow the entire ACA to be struck down.
The GOP gained considerable political advantage opposing this law early on, though many individual provisions in the law have proven to be quite popular, and the public feels very differently now. A complete repeal would likely be politically disadvantageous to the Republicans and provide the Bernie Sanders wing of the Democratic Party an opening to create and pass an even more liberal bill that the Right would despise even more than Obamacare.
10
While this decision winds its way through the courts, The Democratic House would be best advised to do something real about healthcare costs and taking on drug and medical implement costs is the place to start. They need to enact law that mandates price bargaining at a National level, with the instruction to bring costs paid by Americans in line with the rest of the advanced world. They should also write law to allow Americans and American companies to buy qualified drugs elsewhere in the world. Only by striking a blow for average Americans against the powerful healthcare industry can Democrats show they care about the fate of average Americans more that they do about the wealth of the prescription drug lords.
17
The mandate wasn't the only tax. There's an additional tax on capital gains over 250k which pays for the bulk of the ACA. Therefore it's status as a tax hasn't changed. The law is constitutional!
12
No one questions the need to have liability insurance for cars, even if you are accident free. But everyone feels going to the hospital when ill, is a right even if you opt out of insurance and have no reasonable chance of paying your bill. That means the rest of us pay for you. That's not fair. Everyone should pitch in, just in case with premiums that are reasonable to their circumstance in life. Personally, I would prefer cutting out the middleman and having a single payer system.
36
@vickie
You don't have to purchase car insurance if you don't own a car. You are not required to purchase and own a car simply for being a citizen.
There are limits to government power.
5
@vickie
I have never understood this blatanly obvious disconnect. Liability auto insurance is REQUIRED BY LAW in most states. Why aren't the angry anti-health-insurance-for-all mobs protesting this gross governmental intrusion into their automobile ownership?
8
@Lilo
You can get by in life without a car. You can not get by in life without at least one, if not many, encounter with the health care system that can not only financially devastate most people but also actually cost them their lives. I just don’t know how one can sleep at night thinking lacking a car is the same as lacking the ability to go to the hospital when faced with a life or death medical situation.
“It’s just like owning a car!” [SMH!] This ability to blithely ignore the catastrophic consequences of medical events that can result in the loss of lives, an ability now being clearly seen across the GOP as well as commenters like this is the very definition of misanthropy. America is the land of selfish, hateful, mean and truly small hearts and minds.
5
Unelected federal judges are the ultimate proof that America is not and never was meant to be a democracy. Appointed by a President elected by a majority Electoral College vote from 50 separate state elections with the advice and consent of a Senate with two Senators from each state regardless of their population.
America is a republic of a particular kind. America is a divided limited power constitutional republic of united states where the people are the ultimate sovereign. Every branch of government and every official elected and selected are our hired help.
6
Sigh.
Justices and little things like the Bill of Rights are there to protect us all from what is correctly called, “the tyranny of the majority.” You might want to think a little about what the results would have been if, say, the Civil Rights Act of 1964 had been turned over to a national referendum.
3
@Blackmamba
Unelected judges is the backbone of the separation of powers that safeguards our liberty. Other countries have great constitutions but without the separation of powers they are dictatorships.
3
Why is the Republican Party so determined to snatch health care away from millions of people who live in the gap between the truly poor and people with large employers? That group almost defines the Republican base. Small business owners and their workers.
Plus, the idea of using insurance companies instead of the government is the Republican alternative to Medicare for everyone. Why did Democrats even try to help out this Republican constituency by implementing the plan the Republicans once pretended to advocate?
Mysteries abound.
16
@Howard You are correct that the PPACA is essentially a Republican-inspired plan that evades the inevitability of single-payer continues the shameful support of private health insurance profiteering. Had a Republican president proposed it, there would be no outrage from the right: their problem is with WHO proposed it, nothing more.
4
@Howard Because it was crammed down their throats?
I am not surprised. When Chief Justice Roberts validated the law, only, it would seem, on the basis of its tax provision, he spurred Republicans (who lied through their teeth during the Congressional elections) to eliminate the individual mandate so as to provide the opportunity in court to deny 17 million odd Americans of their health care.
That is what ordinary Americans who voted for Trump get for falling for a carnival barker, who claims to serve you while taking away your health care, clean air and farm livelihoods.
Democrats should sue but the biggest lesson is that we now need to move, in phases, to Medicare for All. The Times should stop repeating without question, claims that Medicare for All is impractical. If this court decision sticks, Medicare for All or some variant becomes the most practical alternative.
44
@Frank McNeil Americans are paying nearly twice as much, per capita, than people in the other advanced countries, yet all of those countries have some form of universal healthcare. Could it be, that universal care, coupled with national bargaining over costs with the health industry, leads to better, less expensive costs?
22
The Dems and others opposed to this ruling will be well-served by spending some time creating their message in a clear and simple way that most people can understand. And then give adequate time and attention to delivering the message to the public. (Think Bernie Sanders' repetitive stump speeches in 2016).
Sometimes we "lose" because the issues are technical, complicated and hard to explain clearly to the general public.
But our message needs to be truthful, accurate and non-deceptive - to win the hearts and votes of us who cherish these qualities.
12
Lower courts should not have this much power, and for that matter, neither should the Supreme Court.
If only there wasn't one of the two major political parties that effectively work for the top .1%, then politicians would hold most of the power to pass laws that were in the best interest of all citizens. This would in turn take the burden off the courts on critical widely impactful decisions. Until the great majority of Americans wake up and take a stand against the GOP, nothing will change and continue to get worse.
13
While the legal argument is convincing, I no longer have much faith in the conservative members of the Supreme Court ruling based on the law instead of naked partisanship, with the exception of Roberts.
Kavanaugh is still a wild card. However, the way he demonstrably lied and his bizarre outburst about the Clintons and such in his confirmation hearings does not lend a lot of confidence that he will follow legal principles over partisanship, even ones he has talked about before.
Also, being self employed, I am super excited about the continuing uncertainty, sabotage and various attempts to either ruin or remove my method of obtaining health coverage. After silver plans became unnaffordable due to the current admin stopping the CSR payments, it would be nice if I could still maintain some semblance of financial security by getting a bronze plan moving forward.
18
"It is conservative judicial doctrine 101, as repeatedly emphasized by Justice Antonin Scalia, that the best way to understand congressional intent is to look at the text Congress was able to get through the legislative process."
This is an excellent article because it's so extremely logical.
The convoluted argument adopted by the plaintiffs and Judge O'Connor is based on a cherry-picked logic flow based on hypotheticals and two different time frames, 2010 and 2017, which means, the law had already undergone some changes based on prior SCOTUS rulings.
In other words, oranges to apples, etc.
But the main premise of these authors is that courts shouldn't tinker with laws enacted by the legislative branch, because said changes should accrue to the legislature.
The authors are clearly concerned that giving federal judges the power to make political decisions undermining the will of the legislature is bad jurisprudence.
To which I say, Amen.
26
I am forced to pay taxes for fire protection regardless of type of construction of my home. How is it different regarding the construction of my body. This ruling makes no sense constitutionally. If it stands, we will have Medicare for all after the next election cycle. Even the middle class Republicans fear not being able to get health insurance. If you don't believe me, interview Lauren Underwood the new Democratic congresswoman from Illinois who, as an African American nurse with a pre-existing condition, ran on a platform to protect the ACA. She won in a traditionally Republican district with only a 15% minority population. This is a golden issue for Democrats; "2020 Healthcare", in 2020.
40
@Tom
Your fire protection is a local service. No federal employees are involved in providing you fire protection. The ACA was a federal law not a state or city law. This case is about Congress’ authority. Medicare is a tax, which congress can levy and collect. That is why universal medical coverage (Medicare) for all must be based on a tax.
5
You think local fire departments get no Federal funding?
Hoo, boy.
As some have alluded to; this comes down to profits. As with auto-emission standards, clean water regulations, fracking, pipelines etc., the ordinary working class American loses out to special interest. Big money, now more effective via social media, lobbyist and Citizens United are buying legislation. What galls me is that it doesn't have to be this way. America has many men of character that can lead our government. We have let our government become another free-market enterprise, where political marketing is no more truthful than in traditional advertising. Where are the leaders like Lincoln, FDR, TR and Washington, who thought of country first? Now reelection has become the overriding goal. Even out campaign spending, disqualify untruthful candidates, limit all terms and pick candidates from debates and their positions and poll let's poll ourselves- if you can click "Like" you can weigh in on an issue. Email your rep in Washington. Let there be no question what the majority of a constituency wants. Citizens United masks freedom to buy influence as freedom of speech. Facebook and Twitter wish to provide news and take no responsibility for vetting the accuracy of the content. We are moving in the wrong direction. Only my trust that Americans will generally get it right eventually keeps me from total despair. We created a government by the people as an example to ourselves and world. When did we sell out and what was our payment? I say we take it back.
15
Prof. Adler, who I have known for some years (and whose law school I graduated from in 1973), is as scholarly and astute as it comes in making his pronouncements on the ACA in this op-ed. So, no doubt, is Prof. Gluck. I was called upon by Members of Congress to counsel them as the ACA was being developed in 2009-2010, so I have a vested interest in seeing its legislative survival. I also have written extensively that health care is a right for us all and ACA goes a long way in reaching out to achieve this goal. To thus read O'Connor's opinion is far from soothing, since it takes legal analysis to a level far lower than what would be expected or prescribed for a sitting federal court judge. Judge O'Connor's analysis is flawed to its core for the reasons noone better could articulate than Adler and Gluck! Most importantly, as they conclude, this decision is nothing but one reflecting deficient legal reasoning that is intended to support only a political agenda. To preserve health care as a right in our nation, let's hope the 5th Circuit Court of Appeals recognizes the wisdom of what Adler and Gluck have scripted here, and concur in their reasoning that O'Connor's decision be reversed without question.
30
I am no legal expert, but upon hearing this, I said "this makes no sense". Thank you for explaining why I was correct. We have a serious and urgent problem in this country when it comes to health care. I am employed, have so called "good" health insurance. Every year I pay more for less. I now avoid going to the doctor unless I absolutely have to. When one of my children (early 20's) tell me they need to go to doctor I cringe. We wait. Oh and after this decision they may be dropped anyway.
24
As I read the SCOTUS opinion, the ACA survived – in its entirety – because it represented an exercise of the federal authority to tax; everything else hinged on that. The Court expressly ruled that the law was NOT a valid exercise of authority under the commerce clause.
So, now, Congress expressly deletes the tax.
Has not the entire constitutional foundation for the ACA been removed? If that tax did not exist when the SCOTUS initially ruled, the opinion makes clear that the law could not have survived. Now, absent the constitutional exercise of the taxation power, what constitutional provision supports the balance of the ACA?
To leftists, the constitution is an anachronism, at best an inconvenience. They reject the notion that any checks on the federal government exist. Fortunately, that is NOT the Constitution we have; the default setting for an exercise of federal authority is always NO, absent an express grant of authority.
Here, that express grant was a tax; not, that tax is gone. So, what's left? The Commerce Clause is out.
The question presented, then, is whether Congress can amend a once constitutional law in such a fashion at to render it unconstitutional. Put simply, if the ACA today no longer has an articuable constitutional foundation, does that not conclusive resolve the issue?
6
@Michael I wonder. The tax is not actually gone. It was zeroed out. If the tax was reinstated at a penny, it would functionally reappear. Would that make a difference?
2
@Michael. You've used fundamentally flawed logic because you start with a false premise. The Supreme Court ruled that the mandate was constitutional as a tax--not the that whole ACA was constitutional on that basis. They were making a narrow argument about that provision, which opponents hoped they could use to undermine the law as a whole.
So no, it does not follow that without the mandate the whole ACA loses its constitutional support--that's just a bait and switch tactic. As the professor's indirectly suggest, if the Supreme Court had decided that the mandate was unconstitutional, then they would have had to decide how severable the mandate was from the rest of the ACA, they didn't have to do that, since they upheld the mandate. Since Congress zeroed out the mandate, that all becomes a moot point--clearly Congress in its approved legislation conveys that the mandate is severable (except for ideologues that are looking to rewrite legal and congressional history for their own purposes).
All of that also ignores that there are several other taxes beside the mandate in the ACA if the issue really was about taxing power in general. But since the ruling wasn't about the whole law, but about the mandate, those didn't come up.
In either case, your argument fall apart.
3
@Michael
Your "analysis" ignores the entire argument presented by these two constitutional scholars, who represent both the left-hand the right. In that regard, your interpretation is worthy of O'Connor.
"Justice Brett Kavanaugh is an expert on statutory interpretation who has previously said that courts should “sever an offending provision from the statute to the narrowest extent possible unless Congress has indicated otherwise in the text of the statute.”"
It's all right. Boofin' Brett will come around now that he's unassailable. He has lifetime tenure.
5
Thank you for this opinion piece. It has calmed my mind today. My daughter depends on the ACA for affordable insurance. I shudder to consider how it was before for freelancers. In addition, it is my understanding that the patient protections in the law apply to ALL insurances, both on and off the marketplace. The ACA has created a fairness in consumer rights that must not be jeopardized. Trump ought not to be crowing.
26
Ah...when a court ruling doesn't meet the authors' expectations, it is "lawless", "not based on a solid legal argument"...
But when a sketchy decision with an extraordinary reach for anything on which to hang the judge's robe that does meet their political agenda, they call it enlightened and insightful.
Sorry. The whole premise of the Supreme Court's ruling on the individual mandate was because it was a tax. Now that it is no longer a tax by the vote of Congress and the signature of the President, there is no longer the legal underpinning of the ACA.
And with there no longer being the legal underpinning for the ACA, the whole deal is subject to re-review by the Courts since there is essentially a "new law" that needs to be judged for its entirety.
This case WILL get to the Supreme Court, and we'll get to see if the authors' assessment remains valid.
Until then, a federal judge has declared it unconstitutional. We'll see if the judge puts out an injunction to make is ruling beyond his district, but in his district, Obamacare is no long valid
9
Did you read the article? The issue is severability: whether an entire law is void if a part is overruled. You claim “the legal underpinning” is gone with the mandate so the law is out.
However, that is the entire point of the article: that Congress itself has made it completely clear that the mandate is severable, by removing it yet not repealing the law.
10
@SW
Rather than reading the article, read Roberts decision. A penalty was contorted to be a tax. That is what made it legal. Now there is no tax. Congress voted not to repeal a law that hasn’t been reviewed by the Supreme Court. It s not the same as passing a law. The Court is now left to review the law without the funding that was stated necessary for it to work. Big difference.
3
@Jay
The mandate wasn't intended to fund the ACA, just encourage citizens to purchase health care insurance. The ACA has separate funding.
2
This was a spot on analysis of how bizarre this decision is illegally.
Would love to have you two take a joint shot at the legality and/or constitutionality of the actions taken by Republican Scott Walker in Wisconsin, stripping powers from the Governor's office. Perfectly legal because the existing legislature and Governor approved the legislation, or highly questionable because it removed operations that they had fully accepted and used up to the last minute, without any arguable justification?
24
This is why it is so critical that judges have the rest get qualifications! Everyone needs to pay attention to Bar Association ratings. We cannot have judges with lifetime appointments. We need to be able to get rid of the incompetent ones easily. There are too many judges who are political idealogues. They will lead us further down the path to minority rule. Minority rule is very dangerous, as we already have militarization of law enforcement and border patrol.
14
@Debra: "This is why it is so critical that judges have the rest get qualifications!"
What, exactly, are those "qualifications"? None are mentioned in the Constitution for federal judges.
"We cannot have judges with lifetime appointments."
That's part of the Constitution. It was intended to keep the judiciary independent and not at the whim of mercurial politicians in the executive or legislative branch of our federal government.
"Everyone needs to pay attention to Bar Association ratings."
Why? Who are they to tell anyone who the best candidates are? The ABA doesn't have the power of nomination, do they?
"We need to be able to get rid of the incompetent ones easily."
That's what impeachment is for.
"There are too many judges who are political ideologues."
So true, and it applies to liberals and conservatives alike.
"They will lead us further down the path to minority rule."
Only if you agree with the idea of legislating from the bench. I believe that federal judges should uphold the Constitution, don't you?
6
So which 19 states in addition to TX, and why before this particular judge?
The status of the amended ACA is such that those relying on it face a morass, a hodgepodge of state variations, and persistent uncertainty about what should be a fundamental right for every American from the womb to the grave.
Healthcare, Climate Change, Immigration Reform, Environmental Protection, Infrastructure Renewal, Fiscal Responsibility, Equitable Tax Reform, and on and on; governance and the rule of law left so substantially to rank partisan manipulation that endemically fails miserably to honor and serve the common good and the general welfare.
Concurrently Trump aggressively stacks the federal judiciary with more partisan judges, many with seriously questionably qualifications for the federal bench. Lifetime appointments that will impact for decades to come.
13
@G. Sears: "So which 19 states in addition to TX, and why before this particular judge?"
I believe it was because the main plaintiff is Texas, where this judge has jurisdiction. It's no different than liberals who file cases in the 9th Circuit Court because they have liberal-leaning judges.
"Concurrently Trump aggressively stacks the federal judiciary with more partisan judges..."
Show me a president who hasn't done that.
1
Don’t forget the Senate Republicans who are rubber stamping the vast majority of Trumps nominees. They, too, are culpable.
So 'conservative' judges now are enforcing 'the wishes' of the Republicans in Congress, regardless of legal precedent and the words of the statute. Consider this in the same context as the recently passed legislation in Wisconsin and Michigan, and in the context of the election fraud uncovered in North Carolina, and in the context of Merrick Garland, and take into consideration Trump's continual attacks at the courts and the Justice Department when it applys the law in opposition to his wishes. Figure in prominently McConnell's packing of the federal judiciary with 'judges' of the correct ideological purity, even when those nominated are not considered qualified by the ABA. What you conclude is that there is a concerted Republican attack on the 'rule of law' and democracy as it currently exists in this country. Today's Republican party is seeking to estabilish and sustain their rule and control even when democracy and the law fail to support them. This is a 'slow coup' a gradual usurpation of power while distraction, lies, and denial attempt to dodge criticism and pervert public opinion away from the reality of it. Can there be any more evidence needed that Trump and Republicans are unfit to be in power?
31
@Jim Brokaw, The road DJT and the R's want to take (are taking) America, which you so well described, is supported by 40 percent of the electorate...that equates to about 50,000,000 Americans. Some even wear T-shirts supporting Russia at DJT's Rallies. The other 60% of Americans had better show up at the voting booths and vote straight Democrat in 2020 (remember Gerrymandering) or there may not be an America left that any of us can be proud of (not even the 40%) when it is all said and done.
4
Important for people to remember that Democrats, progressive and independents never wanted this plan in the first place - which they have quickly forgotten. Sink it wholesale and replace it with Universal Single Payer which would include things like acupuncture and other inexpensive non-toxic "alternative" modalities.
Fact is, most people, if they could afford it, would prefer these methods, if they weren't busy paying for mandated health insurance.
And how about some real preventive care while we are at it. Mammograms etc prevent nothing. Government sponsored free yoga classes, tai chi, qiqong, even walking would be so beneficial for health. Getting rid of the toxins in our foods, our homes and air would also be good for health.
And while we are at it, home based midwife births for those who want it, instead of expensive medicalized births.
9
@Miriam Warner
That's a fine goal; however this is a blatantly political decision, as well as an ignorant one, and cannot be allowed to stand.
22
@Miriam Warner "include things like acupuncture and other inexpensive non-toxic "alternative" modalities. "
Snake oil. If you want to waste your money on that then that is your prerogative in a free society. Whatever is supported by government funded healthcare should be very carefully considered so as not to squander the available funds.
@cheryl
This law was blatantly political when it was passed by only democrats.
4
Well, here we go again, this is what happens when a good portion of Americans continue to elect politicians(both Republican and democrat) whom are beholden to the healthcare industry which is now, in terms of the total amount of money spent annually, the NUMBER ONE lobbyist in Washington.
There is even a process in place now(reported by Politico) within both the Republican and especially the democratic party in which considerable money is also being spent by the industry to stifle the introduction of the bill to allow those under 65 to be able to buy into Medicare.
As usual, "follow the money" and it is easily shown that over and over again those in "both" parties that wish to maintain the "status quo" receive considerable campaign donations from the industry who only care about profits, the health of Americans is inconsequential.
5
Only when enough ELECTED REPUBLICAN senators and representatives have relatives whose 21 year old children develop leukemia or another VERY, VERY expensive illness will we find enough REPUBLICANS willing to discuss and compromise on sensible health care for all Americans!
Chief Justice John Roberts has the challenge of his life ahead of him as he tries to find a way to return voting rights guaranteed by the Constitution to American citizens. Politicians like Judge O’Connor, Scott Walker, Rick Snyder, and Georgia’s Secretary of State, among others, have and are currently stripping citizens of their voting rights through their egregious actions!
32
Having been laid off at 61 and facing the possibility of buying health insurance for my wife and me until we turn 65, I have a new perspective on the ACA. Let it die and start over with something we can afford. I'm speaking as a life-long Democrat who was thrilled to see the ACA voted into law.
What few of you are paying attention to is the fact that the Republicans' constant attacks on the law by a million cuts is working. It's creating uncertainty in the market and making this "affordable" approach anything but.
Take my story, for example. I have 12 more months on COBRA, at which point I need to get insurance on the open market (assuming I don't find a job). I checked into the rates for the two of us, both with pre-existing conditions, who make enough money (my wife has her own business) to not qualify for assistance. We're would face a yearly premium of over $20,000 and deductibles around $30,000. And that would not even give us both our doctors (our primary doctors for our conditions are in different networks). From my research, the premiums were more affordable a few years ago, before Trump and the Republicans started weakening the bill.
The ACA has accomplished some great things, including getting kids under 26 covered by their parents (which we benefited from) and forced most Americans to agree that those with pre-existing conditions must be covered. Now, we need the law to make insurance affordable for all.
26
@Eric Having just signed up for ACA, you've a few things out of your calculations. You didn't way whether the plan you looked at provided out of network coverage. There are a lot of ACA plans that provide zero out of network coverage. And the other number that you don't mention is out of pocket maximum. The plan that I just signed up for (which covers out of network at 50%) has an out of network out of pocket, family, maximum of $45k. I'd always thought that the ACA was created to prevent folks from being bankrupted. Picture a family of four in a car accident, airlifted (with no airlift coverage) to a hospital, and then four family members attended by an out of network anesthesiologist. Instant bankruptcy.
But the ACA is better than the old days where, when you applied for coverage, you had to provide medical history going back five years, and if you missed something, hey presto, you ain't covered.
It is time for medicare for all. I'd happily pay for Trump's Mexican Wall if I could have medicare for all as well...
9
The Senate will have to flip to the Democrats and even then, recent history suggests that 60 votes in the Senate is necessary to pass any legislation in that Chamber. That will never happen with the current Republican leadership in the Senate. Finding Republican defectors in the Senate is a Challenge indeed.
5
@Eric
You need - we all need- Universal Healthcare Coverage.
Republican politicians and Judge O’Connor want to gut the ACA because President Obama enacted this program to help us all. The fact that it is so expensive is due to
Republican maneuvers as you said- killed by a thousand cuts.
They never speak of replacements. They have money and insurance. They don’t care at all about the rest of us- We The People.
Silver lining will be Universal Healthcare coverage after 2020 Democratic Sweep !
2
My guess is that Judge Reed O'Connor has excellent health insurance through his employment, probably similar to what our Congress enjoys. Just something for us all to think about.
54
@Paul
Ultimately, even though members of Congress receive "gold-plated government financed" healthcare, the primary problem is that those members of both parties that receive considerable lobbyist funds from the industry itself are the issue and stumbling block to make any improvements to the system.
The "progressive" democrats elected to Congress and in various state governments around the country are unencumbered by lobbyist money, hence, one of their main policy platforms is to vastly improve the healthcare system.
Members from "both' parties who receive considerable funds from the industry and are beholden to them, wish only to maintain the "status quo" AND healthcare industry profits.
4
@Paul
Don’t know his age, but maybe he has Medicare?
This is a problem. I will need, as a constitutional lawyer (PhD), to look further how such a decision could even be made by these judges. The ruling not based in law as far as I can see (tradition, interpretation, precedence of normal, reasonable interpretation of an Act of the People - Congress and Senate).
This is all not good....
24
Well Judge Reed O’Connor has certainly attracted President Trump’s attention and favor based on the rather callous tweet Trump sent out after the Judge’s ruling. In any case, this divining of Congressional intent by a Texas judge will most certainly be overruled by the Fifth Circuit Court because it violates the Supreme Court’s original 2012 decision that validated the entire ACA. Also, even if Congress subsequently “eliminated the mandate penalty,” it never killed the rest of the ACA. Judge O’Connor is usurping Congress’s legislative authority by his sweeping ruling. It will not stand.
34
@Jack Nargundkar did you spend the time reading the SC ruling on the ACA, the entire bases was that congress had the right to tax, since there is not tax associated with the ACA, the ACA can be reviewed again and now it has to be based on the law and not on tax. read it!
Adler and Gluck have done us a great service by clearly stating the weakness of the District Court's decision.
One question: I wonder why the focus here is on the ACA as it stands today, rather than on the legislative action that Congress took in 2017 when it deleted the penalty provision from the ACA. Would it be possible for a reviewing court to find that the ACA as originally enacted was constitutional, but the 2017 action that Congress took to try to sabotage the ACA by removing the penalty was itself unconstitutional and should be undone?
26
@Steve
I agree. The entire 2017 tax law should be struck down. LOL
We are witnessing the fallout of a major defect in our Constitution: There are no "checks and balances" on the high courts.
It's easy to see what is just around the bend for us - this new SCOTUS will be upholding this judge's findings, thus reversing the earlier rulings mentioned here.
What would help us all is a Constitutional requirement for the vote of a Super Majority by SCOTUS to reverse precedent. Consider the "Super Majority" should be the greater of either 2/3s to reverse, or equivalent numbers in the original ruling such as Row vs Wade 7-2.
3
@NeverSurrender Well, there is one form of "checks and balances" on the courts, namely higher courts/courts of appeal.
The bigger problem to my eyes is the extent to which the US has a politicized judiciary. Maybe elections for judges are not a great idea?
14
Our Constitution mandates that the Government of the people shall assure the welfare of the people. The Affordable Care Act is most certainly Constitutional.
250
@Shakinspear Come on... To what level will you take "the welfare of the people" to mean? The framers certainly didn't have "free" healthcare in mind, in which doctors are forced to treat individuals, and the rich are forced to pay for it all, thus violating their own individual freedoms. You people will read the constitution every which way until it comes out on your side. We all know what the founding fathers meant, and it had nothing to do with healthcare.
3
A valiant attempt has been made to find a market-hybrid system, but nothing endurable has resulted from these efforts. It is time to accept that and implement single-payer for a universal minimal coverage package.
People would still be able to purchase supplemental plans for anything beyond this basic coverage, but the for-profit insurance industry will be reduced. Of course it will; That's where the savings come in.
Taxes are graduated and will rise with wealth, but families will no longer have to worry about catastrophic medical costs or crippling insurance premiums.
People will be able to change jobs without losing access to health care. Labor will be more mobile. Skilled office workers down-sized from insurance companies will satisfy some of the badly needed hiring for currently open positions dragging at the economy.
There is very little downside in this trade off and huge gains for citizens and the economy in general.
42
@Susan Watson, I'm concerned that allowing supplemental plans will result in a big opening for the watering down of the basic plan provided through the governmental single-payer mechanism.
4
@rebop
You will never get a system where people cannot purchase supplemental coverage with their own dollars. Such a system is rare in the world--you can buy private insurance in the UK and most other countries with universal health care--and it would never be accepted here. It's irrational to try for something that can never be achieved. Focus on getting basic coverage for everyone--that is a goal most reasonable people can agree on.
And honestly, if some people are extremely cautious and prefer to purchase more insurance than average (I am one of those types of people) who should tell us we can't?
11
@Susan Watson - Why not take the rapacious insurance companies out of it and have universal medical coverage for all, paid for by a tax system that is fair to all with the people with the most money paying the most taxes? It is hard to imagine how any fair and reasonable person could object to such a simple and equitable system
10
The 2017 zeroing out of the penalty (oops, tax!) was part of the Republican legislative majority's effort to repeal and/or destroy Obamacare.
It's presumptuous of these columnists, and factually incorrect, to infer that Congress somehow wished Obamacare to continue. From the moment the Republicans took control, Congress's intent was just the opposite.
A fair reading of legislative intent is that (a) a functioning mandate was integral to the original Obamacare and (b) subsequent legislative actions were intended to eliminate Obamacare.
The Texas judge was right. In this context, severing the unconstitutional penalty would be ridiculous.
7
@Stuck on a mountain If they intended to repeal Obamacare as a whole, why didn't they repeal it as a whole? The answer is that they didn't have the votes. The point of "intent" here is not that the GOP wished they could repeal Obamacare - it's that the intent of the repeal of the tax penalty in 2017 was to repeal the tax penalty, not the law as a whole. By your logic, the fact that most democrats wished that the original ACA included a public option could justify a judge putting in place a public option by fiat. The GOP is simply trying to use a partisan judge to do what they can't accomplish legislatively. This is what conservatives like to call "the judicial usurpation of power" when referring to a judge doing something they don't like.
30
@madrazo1 -- Would your analysis change if the majority legislative committee report recommending passage of the zero-out of the "tax" stated: "By zeroing out the penalty, we are removing the constitutional basis for the Affordable Care Act (legislative taxing authority). Our intent is that without the foundation stone of taxing authority, the ACA as a whole is no longer constitutional. We expect this outcome to be confirmed through litigation in the federal courts."
The facts aren't too far from this...
1
@Stuck on a mountain Again, if their intent was to repeal all of the ACA, why didn't they repeal all of the ACA? As far as I'm aware, the sponsors of the tax bill presented the intent of repealing the penalty as repealing the tax penalty as part of larger tax relief - not setting in motion an arcane legal process that the vast majority of voters had no awareness or understanding of. This is a backhanded, undemocratic power grab by an activist judge - again, just the sort of thing conservatives usually complain about.
3
In 2012 the Supreme Court ruled that ACA was constitutional because it was an exercise of the Federal government taxing authority because the Court ruled the mandate penalty a tax. ACA was constitutional because of this tax. This opinion piece fails to address this central point.
With the penalty tax removed, where does the constitutional authority for ACA come from?
ACA has been a failure in that the country spends over 18% of GDP on healthcare while the next biggest spending county, Germany spends 12%. That additional 6% makes balancing the federal deficit near impossible and has reduced worker take home pay for decades.
Maybe, with divided government, and a healthcare law crisis, we can have healthcare policy that brings the cost below 12% of GDP, help balance the federal budget and raise worker take home pay.
7
@Richard
The penalty was struck down in a tax bill. ACA was never repealed through Congress. The intent of the law was making insurance affordable to people who could not get it through their employer like many service employees ie waitresses. Nothing else was changed to ACA. The judge pretty much overruled congress. We might have judges over rule Medicaid Medicare as defense because of appropriations are not sufficient. The over exceeded his authority.
17
The reason our health care costs are so high is because our health care system is being slowly strangled by for-profit insurance companies. And it certainly will be impossible to bring down the deficit because of the huge tax cut giveaway Congress, which did nothing to increase the take-home pay of workers.
18
@Richard - That's simple - take the insurance companies out of the picture, as other countries have. No one should make money out of people's need for medical help. That doesn't mean people can't have additional health care supplemental plans from private insurance companies and people still have their choice of doctor. Why is the United States the only industrialized Western country that hasn't done this?
8
This was a great article and analysis of judicial overreach for political purposes. Too bad they didn’t mention that this is exactly what the Supreme Court did in claiming that the individual mandate was a tax. It clearly wasn’t and the law should have been out back to congress to fix.
12
Beyond this ACA case, the Supreme Court should end the practice of local Federal District Court judges invalidating laws on a nationwide basis. A Federal District Court decision should apply within that District, not across the country. Similarly, if appealed to a Federal Circuit Court (here, the 5th Circuit) that appellate decision should apply only within the federal circuit, not across the nation. In this ACA case, one judge, in one district, has overturned a series of democratic decisions by the entire US House, Senate, and President.
24
@DCW Just to clarify, a federal district judge *can't* unilaterally invalidate a federal law in any such fashion, regardless of whatever delusions of grandeur he might harbor - though admittedly some of the reporting on yesterday's decision hasn't made this fact clear. Judicial decisions are only binding within a court's own jurisdiction, and in this case it's the Northern District of Texas.
Similarly, a Fifth Circuit appellate ruling would only apply within the states under it, even if the U.S. Supreme Court denies cert (refuses to hear the case). If anything, all of the above is even more true when it comes to determining whether a law is unconstitutional; the buck for such decisions - with respect to the nation as a whole - stops at the U.S. Supreme Court. Period.
6
@Jeff Thanks. I understand your explanation, but why have recent District Court and Appellate Court decisions on immigration has national impact?
2
If families were businesses, Republicans would decry the "uncertainty" created by multiple efforts to repeal healthcare. They would say that businesses can't create jobs when the rules keep changing. They would cry out that we must reduce risk in order for businesses to thrive (see the massive farm bill which approaches $1 trillion). But for families, it's simply survival of the fittest, and I mean that absolutely in the literal sense.
18
Yes, it never ceases to amaze me how cavalierly the health care issue is treated by conservative politicians and judges. Enjoying health care paid for by taxpayer dollars, they nevertheless turn a blind eye to the needs of those who cannot share in that privilege. It’s the essence of cravenness, which is the hallmark of everything “GOP.”
2
Speaking as a lawyer, I thank you for the most cogent explanation I've seen yet as to why O'Connor's decision is an insult to some of the most foundational aspects of American law. I've spent a fair amount of time since news of the ruling came out consoling worried and/or furious family and friends - many of whom would face ruinous consequences if the decision isn't reversed - about the realities of the severability principle, as well as the fact that no single judge can unilaterally usurp Congress's authority and declare a duly-passed law unconstitutional on any such basis.
Still, this op-ed explains it more concisely and clearly than I can, and I've already forwarded it to most of my concerned loved ones.
90
@Jeff
Half of all lawyers lose in court. Winning in the Supreme Court is all that matters. If Roberts hadn’t changed the meaning of penalty in the first case, or State in the second case, the ACA wouldn’t be around. Four Justices wanted to ax the program during the first trial. Kavanaugh, prior to that ruling suggested the law would be constitutional IF it were a tax, not a penalty. Nobody knows how those justices will view the law without a tax, or penalty. There are 3 justices you can count on to abolish the law.
This is a government that carries out its promises! And to do this, they placed guaranteed justices on the Supreme Court. So the repeal is sure to go through. Maybe appeals will buy people will buy another year of coverage.
Whoever wants affordable medical care must emigrate from the US to countries that provide it.
7
If the federal government cannot require citizens to buy health insurance, how can states require citizens to buy automobile insurance?
53
@DAK Because you do not have to but auto insurance if you do not choose to own a car. Rather than being a mandate, it is a condition of a choice.
3
Here's a wacky conspiracy for everyone:
If indeed this ruling was as out in left field as described, what if this is all a setup to make the Supreme Court in its current makeup look non-partisan? Then, when the corporations come begging, the Republican majority on the Supreme Court can have their backs while saying - hey, we upheld the ACA, so we couldn't be partisan.
1
@George - With respect, I think the decision is more properly deemed to be out of right field.
@George, I just got a case of cognitive whiplash.
"It’s not based on a solid legal argument. It’s an exercise in raw judicial power. "
Oh...
Like the anti-Trump-administration decisions coming out of the 9th Circuit Court in California.
As for legal consequence, well, the Supreme Court upheld the ACA solely on the basis that the penalty was not a penalty, but a tax.
Without the tax basis for its foundation, it crumbles....
9
Is there ever going to be a point at which objectivists look objectively at reality?
Briefly put, that did not happen. Just didn’t.
3
You do realize how hypocritical this piece is, don't you?
When a Federal judge strikes down an action by the President and applies the ruling across the nation, for example the President's orders on immigration, the op-ed pages of the Times are alight with strong praise for the judiciary. District judges are said to be protecting the nation from an elected President whose policies are often unpopular with the left.
When a district judge issues a ruling striking down a law popular with liberals, in the case the ACA, the judge is exercising "raw judicial power" and making "a mockery of the rule of law."
Memo to the Times' Editorial Board: what goes around comes around.
The truth is that district court judges need to exercise restraint, and rarely issue rulings on major issues with strong political overtones, and apply them nationally. There are over 670 district court judges, and the current, growing, practice is a recipe for anarchy.
The authors of this piece are correct: this is judicial overreach. But it is also overreach when left-leaning judges overrule the President.
SCOTUS ducked the issues of district judges issuing rulings that exceeded their authority; they must now directly address this issue. If they refuse, our new bipartisan Congress needs to amend the Judiciary Act of 1789, which defines most of the authority of US district courts, and provide explicit guidance to the judiciary on the limits of its power.
16
@Alex Hmmm. Because the President does not enact legislation, unless the legislature agrees to pass the President's desire?
7
@Moses Khaet 'Because the President does not enact legislation' then what was DACA that the 9th keeps upholding and requires federal agencies to continue?
6
@Alex
The judge cannot overturn laws based on taxes or funding.
The Supreme court majority appointed by Republican presidents and especially Chief Justice John Roberts have all the authority they require to reverse and severely rebuke the judicial action of any federal judge, district or appelate, who compromises the reputation of the American judicial system.
Alternatively they also have all the unappealable raw power they need to transform the Federal judiciary into a non elected branch of the government in thrall to the Republican party and its policy agenda. The time has come for the Chief justice and his court to reveal its true character.
Let the Supreme court grant expedited review to this most absurd judicial decision since Bush v. Gore. Such a pre-emptive move is extraordinary but exists precisely to deal with judicial emergencies when ultimate resolution is critical.
8
Well, I am going to be dead in a couple of years, so I don't have to worry about this, But for all the rest of Americans who are not multimillionaires, I hope they start fomenting their very bloody revolution right now.
Read and look at pictures of the French Revolution and how huge mobs of angry French people, half of them women, dragged the upper classes, no matter if they were good or bad, to the guillotines.That got rid of the problem. Trump, his family, and friends should be very, very afraid.
These guys are all over the map.
1. Severability is debatable. The three-legged-stool analogies we've all heard so much about. (until now!) etc. etc.
2. You gave up the ghost in 2012. The law was undermined before when the mandate was [ignorantly, mistakenly] ruled a tax instead of part of part and parcel with Congress' long-standing interstate commerce regulatory role.
2
@Mike I think you've entirely missed the point here. The fact that the Supreme Court deemed the mandate to be a "tax" has nothing to do with the O'Connor decision's severability problem - which isn't truly "debatable" in the least. It's first-year law school material that this simply isn't how statutory interpretation works -- or constitutional law, for that matter.
The authors are entirely correct that even Justice Thomas, arguably now the Court's most extreme-right jurist, will almost certainly take issue with a hypothesizing opinion of this nature, one that bends the judiciary branch's authority far past its breaking point.
13
I think you’re underestimating Thomas as an ideologue.
The judge is a Federalist Society-supported hack. What can we expect when the republican party has abandoned all pretense of allegiance to the rule of law in favor of their legally dubious and unpopular ideology? By appointing judges to the bench who have the thinnest educational and intellectual credentials- but who do swear fealty to the ideological goals of a far right fringe- the republicans have exposed our entire legal system to a dangerous collapse of public confidence and legitimacy. We have to take back the reins, fellow citizens, before the damage is permanent.
64
@SgrAstar Actually, the curious issue here is the fact that Judge O'Connor was a Bush (43) appointee, and has sat on the federal bench for well over a decade now. While his jurisprudence has demonstrated that he's no fan of the Affordable Care Act, he's never previously felt emboldened enough to challenge a foundational principle of the American legal system in such a fashion.
The question of what drove him to such an extreme is an interesting one, but likely has an answer pointing directly to our "emboldener in chief."
21
Please note that Justice Kavanaugh voted with the majority in the recent Planned Parenthood case, much to the surprise of the media and the rabid Senators and their camp followers who tried to derail Kavanaugh’s confirmation.
Is it possible Kavanaugh will vote according to his interpretation of the law on the ACA? I don’t doubt that he will.
4
A "federal judge in TX wiped Obamacare off the books." That, plus the arguments made in this piece go a long way toward explaining why the Republicans in the Senate have been so vigorous in placing "their" judges. It's only going to get worse along with contempt for "their" courts.
28
As with any intent or action that is designed to help the weak, help the poor, help the average person (most people), the announcement of Obamacare triggered hysteria, conspiracy theorizing, terrorizing among the right (not just extreme right).
It was very effective.
And there was near dead silence from those it was designed to help. I recall in the early days when the proposed Obamacare was in discussion (prior to vote), it was the republicans who would not refuse to offer any crackpot theory to torpedo the entire thing.
The fear, dread, loathing, paranoia that Obamacare would help blacks and Hispanics united the right like virtually nothing else (I guess hatred for an educated strong independent woman called Hillary was the other uniting force).
What should have occurred is large demonstrations in support of ACA, not large demonstrations by hate mongers, the paranoid, and the lunatic (not fringe, but sizable segment) republicans. Every American who supported ACA, but did not march and make her/his support known, and who hid behind equivocating arguments about seeing both sides, and voted for a third party candidate as a statement against Hillary, owns this horrible verdict by a Texan judge.
22
Sounds like O'Connor may be one of them "activist judges" conservatives spoke of in years past.
21
God help any judge who takes away health care that covers pre existing conditions.
28
As much as I support Obama Care, I’m starting to think that the right will win this battle. The battle was lost when Mitch McConnel refused to hold hearings on Judge Garland. And that happened because 16% of the population controls 60% of the Senate. On the up side, I think most of the people who lose their health care will be Tump supporters. Oh well.
14
@E I'm curious how you arrived at this conclusion, considering the Court's internal calculus hasn't changed one bit since the last time it heard a challenge to the Affordable Care Act. As a reminder, Justice Kennedy (now replaced by Kavanaugh) voted *against* allowing it to stand. Chief Justice Roberts was the prevailing voice of sanity that time, and as the authors point out, he would be extremely unlikely to uphold a decision that's such an affront to the country's most basic separation-of-powers doctrine.
3
Another nail in the coffin of judicial integrity. It will not be long before the judiciary has the same approval rating as congress.
23
This is a court ruling that will live in infamy, perhaps noted in law text books for decades as a prime example of overreach.
As someone who did not spend three years in the tortures of law school, the ruling in Texas struck me immediately as ridiculous. Why was such a ruling issued in the first place when any half decent judge would have to know it was likely to be shot down? One aspect seems to be just to create embarrassment around the legacy of Barrack Obama and to pretend that the far right really did have a point about him and Obamacare.
Another motivation could be equally suspect and worthy of a college sophomore: 'Let's try this and see if it works.' Perhaps some higher court will split the difference, accept the basic argument and wipe out part of the law? Give it a try.
There is no end to how far the extreme right will go to try to achieve their goals. If nothing else, the judge has put himself on the list for potential nominees to the high court by Trump or a future right wing true believer in the White House, a crass political act by a judge who was supposed to decide modestly and carefully for all of the people...but only according to the law, not outlandish, tortured interpretations of the law.
25
I for one, am glad to see this. The American people voted the folks responsible for this into office. Now American gets to enjoy what they asked for.
Please keep listening to these same people. Soon you will have no Social Security or Medicare (these folks HATE both of those programs). Please keep voting in folks who value ideology over you and your family's lives and health.
Maybe next time you vote you won't just look for the party name and stop thinking before you enter your vote, but if not, please feel free to celebrate getting what you asked for.
21
@LaughingBuddah While I see your point that eliminating the Affordable Care Act could prove to be the one thing that finally opens the eyes of Republican supporters to the damage their votes have wrought, I'm not "glad" to see any such decision of this nature because I know how many millions will suffer - and in some cases quite literally die - if it stands.
2
@LaughingBuddah
"The American people" did not elect them. A minority of the American people did, in a hideously corupt perversion of the democratic process.
So, NO, WE DID NOT ASK FOR THIS.
"Constitutional Judge" One who enacts the right-wing agenda regardless of Federal Law and the Constitution, either using legal contortionist pretzel logic, or flat-out ignoring both.
"Activist Judge" One who follows the Constitution to the consternation of the right-wing agenda.
We are living in troubled times.
12
Republicans are "Legislating From The Bench", which is precisely what they accused the Democrats of doing years ago.
7
If having healthcare for you or your family matters at all, you will never vote Republican again. Medicare recipients, I would keep a close eye on Republican in Congress as one of their leaders, Mitch McConnell, has called for reducing your benefits. How you vote greatly affects your quality of life or your life itself.
39
This partisan hack has likely given the Senate and the WH to the Democrats in 2020. He has also likely advanced the timetable for Medicare for All by a decade. Republicans have learned nothing from the 2018 election, but we continue to learn everything about them. They hate the American people. They love only their donors. Their only policy is to rule with absolute power. And the only way they can continue that rule as they become an increasingly smaller minority is by rigging elections and stuffing the courts with partisan hacks.
27
Republicans have characterized "Obama Care" as an egregious expansion of the government and the mandate as a coercive act.
But Republicans would never repeal the 1983 Emergency Medicine and Active Labor Act, which was signed by President Reagan for they would be voted out of office. However, this law forces hospitals to provide health care to those who can not pay. In fact during the debate that preceded the affirmative vote by Congress for "Obama Care", one Republican said that free health care was available at hospital emergency rooms. But President Reagan's law was a major new government mandate, and thus an expansion of governmental power. At it was coercive to all because the unmet medical costs of the indigent or uninsured must be covered in the bills to whose that can pay or by reducing hospital staff and services. (How many stories have your heard about long waits in the ER because a hospital bed is not available?) If this judge's ruling stands, we know what will happen because it is happening to rural hospitals in states that have not expanded Medicaid; those hospitals are closing at a significantly faster rate than rural hospitals in states that have expanded Medicaid coverage.
Republicans tell the truth. You hold that health care is a service to be purchased and not a right. Do you also hold that those how can not afford health care are better dead than being a burden to the wealthy?
21
EMALA is an horrendous government overreach that has tarnished Reagan’s reputation since the day he signed it into law. We are a capitalist economy. While it is not perfect, it beats every other system because, like nature, it rewards achievement while punishing failure. All other systems fail because they collapse under the weight of the “benefits” they hand out. Health care, like housing, food, clothing, education and everything thing else in life belong to those who can afford them. Growing up, my parents couldn’t afford college so it wasn’t an option for me. That’s how it’s supposed to be. No one else should have to pay for my education or health insurance or retirement or recreation or food or housing. Those are individual responsibilities and if I haven’t earned them, I shouldn’t enjoy them. Period.
1
Turns out that Republicans do like judges legislating from the bench after all.
490
@NM -- it's not a matter of the judges legislating from the bench, my friend. It's all about gutting the black president's signature domestic achievement.That Obamacare covers millions of Americans with pre-existing conditions doesn't matter to Republicans.
32
This is all good reading on the legal aspects of the arbitrary decision by the judge, but there's another side to this poor ruling, a human one.
Affordable healthcare insurance is one of the highest priority needs of the American people. Poll after poll shows a majority, both Democrats and Republicans want the ACA, and the expanded Medicaid that went with it. Through their representatives the people chose the ACA, and only they should be able to remove it.
This judge should be removed, he's not God, he's not Congress, he is a right wing despot though in disguise with a robe.
35
Single-payer systems don't have this issue as everybody is covered from cradle to grave through tax-funded, gov't managed insurance.
Non-profit ins. companies before Nixon's HMO law were allowed to exempt only pre-existing conditions from coverage for 12 months if you had had treatment for them in the last year of your old coverage. However, a little-known law required your old company to continue to cover the pre-existing condition's treatment for 12 months after you left them.
For-profit companies, like the ones from employers (if you are lucky enough to have this benefit) can refuse to cover pre-existing conditions or even refuse to enroll you at all if you have a pre-existing condition. In one case, a middle-aged woman lost her insurance 3 days before a scheduled double mastectomy for breast cancer when an insurance company beancounter found she had failed to report a visit to a dermatologist for acne cream when she was 18. She died. For-profit companies or the gov't can set up "high-risk" pools for people with pre-existing conditions, but the deductable, subscription fees, co-pays, & coverage exceptions are usually so high most ordinary people simply can't afford them (this is about the best the GOP can think of).
The Individual Mandate was a GOP plan first proposed by the right-wing Heritage Foundation in 2 papers written in 1989 and the core of all GOP plans until 2009. Mitt Romney made it the cornerstone of Romneycare - including fines for non-subscribers.
21
The fact that one federal judge, one human being can potentially cause so much damage to lives and happiness of citizens is unbearable to a person who wants justice and fairness.
The law was not meant to ruin lives of innocent people. If it is doing that, we have to change our laws. This is not physics it is a rule based system invented by humans.
17
When Roe v. Wade was decided by the SCOTUS, it also was a case of judicial overreach, although we loved the decision. The government had no business invading medical decisions made between patients and their physicians. Rightly so - although the Fourth Amendment provisions against search and seizure seemed to be a peculiar standard for the decision.
Now the pendulum has swung to the other extreme, with one sentence used to obliterate a larger act of Congress. If memory serves, didn't the Chief Justice not so long ago cast the deciding vote that saved the ACA, a case that went to the Court because of the varying interpretations that could be given to one word ("State").
The real problem that is overlooked is that by acting as though the country is based on "laws," not persons," the fatal flaw is that persons interpret the law and pass judgements on it. There is no clear Constitutional imperative for judicial review, just a power grab by John Marshall to keep the Federalists in power in the only part of the federal government in which they had control thanks to the appointment of the "Midnight Judges." (They still rule in "darkness").
SOLUTION: Any appeal of legislation passed by Congress and signed by the President should go directly to the SCOTUS, which could then decide (1) whether to hear it and (2) then pass judgement. Let's avoid Constitutional rulings by political hangers on who have gotten lower court appointments. Let them stick to criminal and business law.
2
This errant judicial ruling will have positive effects if it convinces more Americans to vote and to defeat conservatives like Judge O'Connor - despite conservative gerrymandering and voter suppression, to say nothing of electoral fraud such as that in North Carolina, Georgia, and elsewhere in the USA.
If the blue wave which began this year can become a blue tsunami in 2020, Americans will be able to finally receive the universal health care which the citizens of all other advanced nations take for granted.
25
Never mind about abstruse constitutional arguments, the individual mandate was just another source of revenue to make the ACA work. Without it, a) insurance premiums must go up or, b) congress must increase other taxes or, c) healthcare workers must be required to work for free or, d) covered services must be reduced to fit the revenues available. Without the individual mandate the law is sufficiently underfunded that it cannot work as intended, a new congress must either fix it or the law must stop working.
3
What disturbs me about this ruling and other comparable lawsuits is that this actually illustrates a core weakness in our entire legislative/judicial process.
Specifically, even if "law is settled", new laws or lawsuits are initiated which will be obviously ultimately be shot down, but millions of dollars and years of time are wasted with millions of lives adversely affected as the judicial system works its way.
To an engineer, this is abhorrent!
In engineering, before we make a decision regarding requirements or design for a product or service, we get buy-in and approval from many groups. Everyone must bless it before it is released to the public. It shows that we did our due diligence and affords us some protection should there ever be litigation.
But the legislative process does not work like that. In theory, a legislature is just like a group of engineers, but, unlike engineers who require approval from many other groups, legislatures don't do that. Their laws can be passed yet unconstitutional because the judicial branch has no chance to review the laws BEFORE it is passed. They only have access to a law once it is passed.
Had that been the case with Obamacare with SCOTUS approval BEFORE it became the law of the land, there would be fewer cases challenging it.
Bottomline: If the Judicial Branch had veto power in law creation, we'd have better laws and less litigation once the laws were enacted. That saves time, energy, money, and lives.
42
@VJR. Under our federal system, federal courts do not render advisory opinions, let alone regarding the constitutionality of laws that have yet to be enacted. The Constitution requires a "case or controversy" which has long been interpreted to require an "injury in fact."
The jurisprudential issue with your suggestion is that the Supreme Court cannot anticipate every hypothetical situation the real world may create. That is why every act of Congress is deemed constitutional until tested in a case where someone has the requisite injury to challenge it.
It may be a messy and inefficient system, but politics cannot be equated with the science of engineering. There are all manner of issues, beyond just making sure your math and physics are correct, that legislators must take into consideration.
52
In addition, engineering isn’t affected by opinion polls, like those cited in the comments here, that the majority of Americans want a single payer system.
14
Are you are confused about who the highest court in the land actually is.
The Supreme Courts is the highest court to sit in Judgement.
However Congress can overrule any Supreme Court ruling, simply by writing newer better law, to be fair to Trump, this is what he asked Congress to do.
Even Congress cannot make the States or the Administration use a Tax raising power, that is Budgeting Issue.
When Congress write a tax law, it isn’t the Justice Departments business, to set tax rates if the Trump Admin chooses to move the potential cost of Healthcare, back to the EMS system that is their choice.
As the GOP could not vote down Healthcare in Congress, they chose to defund it.
Courts via a single Judge cannot simply abolish a bill.
Perhaps the question to ask, is should Circuit judges who get overruled by the Supreme Court not simply be under immediate impeachment process.
Congress could of course refuse to Pass the budget or in January immediately reimpose the mandate at a different rate under a different formula. Instructing the President to do his job run the Executive as directed by Congress reflecting the will of the Electorate.
In Numbers the Dems won both houses by millions.
Yet only the truly outdated formula gave them the Senate.
Is it utterly crazy that one partisan can ignore that.
GOP Senate only got about 10% of the potential voters yet from Vermont to Wyoming Senators were elected by less votes than Congresspersons from almost anywhere.
6
If this legal opinion stands it will force the next Congress, Republicans included (particularly in the Senate) to deal with a crisis that none of them (Republicans included) really want to deal with.
There is one really simple band-aid fix: reinstate the penalty, make it $1.
That this is a completely legal answer to the judge's position makes clear just how absurd his position is.
342
@Lee Harrison
The decision won't stand.
The ACA is comprised of roughly 21 different types of tax code changes, one of which was the mandate tax, which comprised a relatively minor part of the ACA tax revenues.
This decision is one of the most incompetent decisions in United States judicial history.
"Free-DUMB !"
GOP 2018
69
@Socrates...You're right. The Judge's decision won't stand upon appeal. I'll bet the Judge counted on that. But, the ACA will once again be put under the light of day, unlike the day that Pelosi foisted it on America. As for the "penalty", it was just one of the absurd aspects of Obamacare. First, it was never enforced by the IRS. Second, it was so paltry that even a liberal with half a brain would realize that the penalty was a lot less than the cost of forced compliance. What a worthless negative incentive. Par for the ACA course.
This is a victory for Republicans and they should be celebrating! For the rest of us, it makes clear the intention and strategy of Republicans everywhere, state and federal, to deny medical care to any working person of modest means who comes up a few dollars short of the premiums Aetna, UnitedHealth, Humana and Cigna executives in their glass towers decide to charge. It's the capitalist way. Survival of the richest. Meanwhile, the poorest and the oldest have "socialist" government insurance. It's just the low-income working people and their families who have to go without and suffer.
258
@abigail49
"Drop dead, non-rich America !"
GOP 2018
50
@abigail49
Actually for the big healthcare insurance companies this is a calamity. They spent YEARS gearing up for the ACA, building new procedures and software to handle it. When the ACA originally was launched with myriad problems, it was Optum HealthCare, a branch of United Health care, that created the tools to save it.
The old tools and methods of reimbursing providers were all changed with the ACA.
Think of it like a manufacturer re-tooling to switch from SAE (inches and feet) to Metric, developing the change for 2-3 years, enacting it for 5 years working totally in Metric, then having a court decision that OVERNIGHT outlaws the Metric system--along with all your tools and products! That's what this is like for both the health insurance industry and providers.
I anticipate a HUGE drop in the stock market Monday.
38
Since all other measures are subjective, wealth is the only valid capitalist scorecard.
10
I am not a lawyer but even I could see that this was a judge usurping policy decisions. This could mean that every time Congress reduces taxes, sometimes to zero as with the Earned Income Credit, it undermines its entire ability to finance a Federal Government and therefore the whole budget is unconstitutional.
I know Conservatives would like to claim they would "Shut it down!" but since they are actually the biggest beneficiaries of Federal government largesse and laws they don't really mean it to be shut down for themselves.
160
Obamacare was never insurance because it forbade insurance companies from making the usual risk assessment meant to lower their liability and increase their profits. Under the old system of health insurance companies competed with one another based on the amount of the premiums they charged and on the extent of the coverage they offered, e.g., types of medical services covered, amount of deductibles, out of pocket expenses, and annual ceilings. Obamacare essentially replaced risk assessment and avoidance with mandatory coverage regardless of preconditions or cost. Thus risk was now made unavoidable and competition was replaced by government guarantees. When the cost or the liability began to exceed the amount of premiums, the government would make it up by approving higher premiums or by diverting money from other sources like Medicare. Obamacare also made certain types of coverage like women’s health mandatory which also increased costs. This model became unsustainable. This latest decision only represents reality. Whatever its legal merits it signifies that it is time to replace the unwieldy hybrid of government subsidized private health insurance with insurance that is either totally private and profit-based or totally run by the government.
6
@Ed "replace the unwieldy hybrid of government subsidized private health insurance with insurance that is either totally private and profit-based or totally run by the government."
If that's the choice, I'll go with the latter. You have to be delusional to believe that totally for-profit health insurance companies would do anything other than treat policyholders like sources of revenue extraction, i.e. collect premium payments from them but then refuse to approve any claims when people inevitably get sick.
20
@Ed
The government could also divert money from other sources such as the defense budget or corporate subsidies.
11
@Ed Right, health insurance is not a sustainable business. That's why we need Medicare For All.
22
What I find most remarkable about this lawsuit is that it was filed by governors and state attorneys general. The ACA imposes no cost on states that elect neither to expand Medicaid coverage to their residents nor to set up their own state insurance exchange. The law merely protects citizens while offering Federal subsidies to participants below a certain income threshold.
The cruelty of these government officials in sabotaging health care access for millions is truly astounding; their motives, beyond comprehension.
84
I’m torn: I agree with the writers over the egregious overreach of judicial power and share their concern for the degradation of legal norms, yet I feel a certain joy that the left is reaping what they have been sowing for decades. For example, just about everything that Trump does is challenged by some left wing attorney general trying to build his or her political reputation.
5
@Jon F
Oh, please. All presidents are challenged by the opposition. Most presidents are more careful about following the law and public consensus so it is harder to challenge them. If Trump gave a flying fig about what was legal and about the views of the 75% of citizens who did NOT vote for him, he wouldn't be facing opposition for "everything he does."
4
@Socrates It’s not a false equivalence. I have no respect for Trump. I also have no problem investigating where he may break the law. But Democrats’ aggressive use of the courts as a means of blocking his policy agenda, for example rules on immigration, because of frustration at losing Congress and the Presidency, is a cynical disregard for the mores of our republic. Live by the sword, die by the sword.
This was a clear and helpful analysis, based on principles not consequences, and is one if the reasons I love the NYT.
In addition, it is strengthened immeasurably by the history of the authors as having bern on opposite sides during the original legislation.
10
This is what happens when one party (Democrats) pass a law that does not involve the other (Republicans). This ruling is GOOD for all people of the country as our government can pass law that will finally be able to pass the test of time--not just the originating administration.
10
@Lee The law originated from the Republicans, called 'Romneycare', but they threw that over the side when they found out Obama was going to use it as a strategy to get Republicans to go along.
54
@Lee
The ACA was passed with a 60-vote supermajority vote, unlike the 2017 0.1% Tax Welfare and Mandate Repeal Act that passed by a simple corrupted majority GOP vote
(51-48) so the rich could get their filthy gold.
For the ACA, the Senate Committee on Health, Education, Labor and Pensions Committee, chaired first by Edward Kennedy and later by Christopher Dodd, held 14 bipartisan round-table meetings and 13 public hearings. Democrats on that committee accepted 160 Republican amendments to the bill.
The Senate Finance Committee, chaired by Montana Democrat Max Baucus, was writing its own version of the ACA. It held 17 bipartisan round-table sessions, summit meetings and hearings with Republican senators.
On the House side, the Republican leadership made it clear to members that they were not to cooperate in any way with the effort to create the health insurance program proposed by President Obama.
McConnell, then the Senate minority leader, was equally disapproving of cooperation.
Despite that, a few Republican senators, such as Finance Committee members Charles Grassley of Iowa and Mike Enzi of Wyoming, were in discussions with the Democrats until McConnell warned both men that their future in the party would be in jeopardy if they supported the bill.
The reality is that the Republican Party refused to participate in governing, preferring scorched earth politics and GOP nihilism.
Republicans have no interest in helping anyone but the filthy rich.
Deplorables.
23
@Lee - When will Republicans make a serious attempt to engage on this issue? They have had since 1993's Hillary Clinton health care plan to come up with the "law that will finally be able to pass the test of time". Based on their track record over the past 25 years, the answer is clearly NEVER.
15
Not being a lawyer, I guess I have less standing to have an opinion on what will be deemed constitutional or not. But I do believe we all have some equal rights as citizens to decide what should be constitutional. So it is in this case where I believe that the writers are correct that the decision that the law is not severable is incorrect. But I can't help but think, as someone who has a generally conservative outlook that this decisions, a plainly political action by a single district judge that attempts to make vast changes for the entire nation for all time, is just deserts for the liberal forces that are often served by such decisions.
But beyond that it saddens me how we have allowed our courts to become a sort of super legislature, a small, non-elected house of lords of the best and brightest that make our final policy decisions for us. We tend to hold them up as untainted by "politics", which really means, unconstrained by democracy.
The result has been a legislature that strives to keep its fingerprints off everything, leaving all material decisions either to the executive or the judiciary and a populace who see every federal judge as properly being representative of one political view or another. We have long given up on trusting ourselves enough to make important amendments, instead relying on 5-4 decisions to pretend the constitution means something it plainly doesn't, hoping stare decisis will eventually make it correct.
1
Unfortunately probably won't prevail. Then we might get Medicare for all.
1
@Audaz
Not "unfortunate" for hundreds of millions of your fellow citizens who rely on the law to ensure that their employee coverage won 't turn down life and health-saving treatments based on tiny administrative technicalities.
It is not "unfortunate" for the millions of us who work, but do not have access to employer coverage.
I want universal coverage, but recognize this issue has been a hot potato literally since Teddy Roosevelt. Let's get it done without additional human sacrifices, please. Let us not casually dismiss the extraordinary human tragedy that would ensue if this ruling takes effect.
This is a fantastic "by the law book" analysis, and does make me feel a bit better.
But we're talking about the GOP here.
They stole the 2000 presidential election, aided and abetted by the SCOTUS.
Based upon your analysis vis-a-vis "severability"(essentially a don't throw the baby out with the bathwater argument) , it "feels" like a slam dunk, but unfortunately that is not the real world we live in.
40% of the states were party to this lawsuit, despite the fact that although obvious to you and me, it had no merit.
Even if the "fifth circuit" rules for the law, I can't imagine a scenario where the SCOTUS declines to review this case, the pressure on them to do so will be crushing.
3
This is nothing less than one low-level Southern right-wing judge imposing his own personal ideology on 330,000,000 people & showing his contempt for the Constitution & the people. It is not surprising, given their penchant for bare-faced lying, that many of the Republicans promising they'd NEVER (heaven forfend) allow insurance companies to deny coverage for pre-existing conditions were signatories to the case that just removed all protection for pre-existing conditions. Until this ruling wends its way through the courts to the Supreme Court, with the majority of similar right-wing Justices, millions of people are left with no coverage, and millions more with options far higher than they can afford. There are several ways (better or worse) to offer insurance to people with pre-existing conditions. Before Nixon and the HMO law, most insurance companies were non-profit companies that did not have a primary fiduciary duty to take some of your premiums & distribute them to investors. They also didn't pay owners high salaries. Medicare spends about 2% on administration costs, while for-profit insurance companies pay 15 to 35% for admin costs - all off the top, before they give a single dollar to their subscribers. See accompanying post for ways to provide for pre-existing conditions.
38
What's really scary is that Mitch McConnell is fast-tracking appointments to federal courts for judges with the 'right' conservative credentials - seemingly without regard to whether they're competent. Many more of these kinds of cases will be coming down the pipeline.
44
@John Malo
If they are not competent, good. Makes it more likely that their rulings will be overturned.
Just the latest from the Republican Grinches trying once again to put coal in the health care stockings of millions of Americans. And just who were those always bemoaning "activist judges"? Fortunately, this partisan, illogical ruling is unwilling to stand even before the conservative Supreme Court where the individual mandate has already been affirmed as
"settled law" that has not been revoked by Congress.
4
For over a half century we have had to to endure a constant conservative drumbeat castigating liberal judges who supposedly wrote the law rather than interpreted it. The current judicial assault on the A.C.A. is just the latest example of right-wing judicial activism, following cases such as Citizens United and Shelby County, in which the Supreme Court rewrote the law on campaign finance and voting rights.
Can people be blamed if they view judges as nothing more than politicians wearing robes?
45
This ruling by O'Connor is just more drivel coming out of the mind of a self-styled "conservative" in the U.S. who has come to believe that "freedom" is defined by just two things: The right to purchase and own firearms without any regulatory oversight, and the right not to pay any taxes on income or investments.
To have a country governed by the mindsets of Wayne LaPierre and Grover Norquist strikes me as kind of a bad idea...unless you're an extremely rich, crass, tacky, classless, disgustingly materialistic person and also a paranoid prepper. So rich oil barons in Houston may be applauding this ruling, but I'm not.
36
The Supreme Court has twode ruoed Obamacare consitutional. If the repeal of the individual mandate renders it unconsitutional then it is the repeal that is unconstitutional. And the remedy is simply to restore the mandate. Not to repeal the rest of Obamacare.
5
"The Supreme Court has twode ruoed (sic.) Obamacare consitutional."
@IGUANA - So what? Separate but Equal was also ruled constitutional. You have to dig down and look at the arguments before reaching a conclusion. Unfortunately, the NYT is not likely to publish an op-ed which takes the other side of Messrs. Adler's and Gluck's piece.
We are the only first world industrial country without universal coverage.
And we pay twice as much per person as those other countries.
You may not be paying directly but your employer is. And those premiums leave less for raises.
And we have parts of the US with infant mortality rates of a second-world country.
56
@Independent
Yes. The only civilized nation on the planet that does not cover health care for all its' people. We pay more for health care and our health outcomes are among the lowest in the world. Pay more, get less: we're number one. AND we lead the world in medical bankruptcies. Actually, that one's easy; we're the only nation that knows what that even means.
Is this a great country or what?
No, seriously; how can they wear that stupid red hat in the face of our health travesty?
2
The authors call this decision "an exercise in raw judicial power," and I see their point. McConnell's refusal to allow hearings for Merrick Garland could similarly be described as an exercise in raw legislative power.
It's worth pointing out, however, that such exercises in raw power are no longer in an important sense judicial, or legislative. The constitutional provisions for the legislative branch are designed precisely to constrain and channel power. Constitutional legislative power is, so to speak, "cooked" power. And the very idea of justice presupposes limits on raw power.
Judge O'Connor's decision here perfectly exemplifies the view of government itself held by the current Republican party: absolute contempt. We see it in the US Senate. We see it in Wisconsin. We see it daily in the actions and speech of Trump: the exercise of raw power, which is by definition lawless.
50
What this Texas yahoo judge ruling reveals is that Reed O’Connor's (a judicial appointee of George W. Bush) Republican Party Death Panels are alive and well.
Instead of elected Republicans trying to fix, revise and amend the law, they spend every waking moment screaming 'repeal Obamacare', suing 'Obamacare' and killing the ACA by a 1000 cuts.
The ruling, which would result in the premature deaths and increased medical bankruptcy of many Americans if allowed to stand, will be reversed by a higher court.
What this radical right-wing judge didn't mention is that ACA funding is comprised of a wide range of taxes which were implemented, not just the mandate tax.
These are some of the ACA tax revenues still in place today which the corrupt judge ignored:
$123 Billion: 3.8% percent surtax on investment income for households making $250,000 or more
$86 Billion: Hike in Medicare Payroll Tax
$60 Billion: Tax on Health Insurers
$32 Billion: Excise Tax on Comprehensive Health Insurance Plans
$23.6 Billion: tax increase on a type of bio-fuel
$22.2 Billion: Tax on Innovator Drug Companies
$20 Billion: Tax on Medical Device Manufacturers
$4.5 Billion: Elimination of tax deduction for employer-provided retirement Rx drug coverage in coordination with Medicare Part D
$2.7 Billion: Tax on Indoor Tanning Services
https://www.atr.org/full-list-obamacare-tax-hikes-listed-a7010
The radical Republican Party and its radical judges continue to try to kill Americans for selfish greed.
367
I'm very surprised by Jonathan Adler's position here. If we accept his reasoning, it would open up a giant loophole in the constitution.
Action X is unconstitutional.
Action X+Y is constitutional because Y is an exercise of the power to tax, and X is just details about how to do it.
According to the authors, if congress wants to pass X without amending the constitution, it can pass X+Y and then repeal Y.
That seems obviously wrong. Perhaps the authors really believe that the actual mistake was the original ruling that declared X unconstitutional but X+Y constitutional. But that is now the law of the land, and only the Supreme Court can revisit it.
4
@Jason
This is exactly right. All of the supposedly wonderful things about Obamacare were made possible by the individual mandate and the tax penalizing those who failed to abide by that mandate. Congress did not repeal the individual mandate when it eliminated the tax. We have to ascribe legislative intent to that act.
The fact is that we are in this position because of Chief Justice Roberts’ contorted opinion in NFIB. I don’t like that Obamacare is having to undergo dismantling by the courts in this manner, but that’s what happens Congress passes an unconstitutional law, the Court goes to great pains to uphold it on a technicality, and the technical aspect of the law upon which it was upheld is thereafter effectively written out of the law.
The only way to arrive a a decision that would not strike down Obamacare in its entirety would be to find that zeroing out the tax does not mean that the tax goes away - i.e., that a statutory provision levying a tax is still a tax even if the tax is $00.00. But that would mean that a Congress has plenary authority to do whatever it wants as long as there’s a corresponding tax. That would be absurd.
2
It sounds like Judge O’Connor is either not very knowledgeable about the law or he is purposefully misinterpreting well-understood statutes and conventions in accordance with his own political biases.
Shouldn't such judges be removed from the bench? If this is such an egregiously wrong decision, and one with such dramatic impacts to the nation, can we afford to simply let the decision be reversed by higher courts and subsequently permit O'Connor to get to work on his next destructive project? Perhaps Congress should consider impeaching Judge O'Connor.
41
@Lew: Speaking ill of specific judges invites citation for contempt of court, and bias against individual lawyers and law firms.
Truth is, we pay for the uninsured one way or another. You can deny people insurance and pay higher premiums, have higher copays and deductibles. Or, we can go the humane route and make sure people have the security and peace of mind of coverage through gov’t mandate.
63
@James
I agree James, but we pay for the uninsured in even bigger ways. We pay in taxes that support local hospital districts that receive the thousands of uninsured in their ERs when they show up with pneumonia, the flu or some other respiratory condition because they cannot go to a doctor's office for basic care. We pay when obstetric patients show up in ERs in crisis because they have been unable to afford any prenatal care at all. And we pay when that 20-something, who could afford to pay for insurance but decided he didn't need it because he was in perfect health, is involved in a horrendous head-on crash and rings up hospital bills in the tens or hundreds of thousands. The costs, when he is unable to pay, will be written off and charged to tax-payers through one channel or another : direct taxation to support ever greater needs of public hospitals or higher costs because private hospitals eventually have to write off such debts. We all pay, one way or the other. So as you say, why not pay up front and live in a more sane, safer society.
13
The very scariest fact of the Republican obsession with taking away people's well being and lives is that they are believed by their robot followers. The guiding reason for Republican leaders as claimed is to maintain freedom for those who feel forced by the government to have health insurance. The followers were actually convinced to endanger their health and lives for rote Republican Rhetoric.
25
And what is the Republican plan for healthcare?
It was Obama-care, based on Romney-care based on the Heritage Foundation.
The individual mandate is the Republican principle of individual accountability and responsibility.
The health exchanges is the Republican principle of free market competition.
When Obama agreed to those, Republicans called it "government take over of healthcare" and "death panels."
111
Republicans liked RomneyCare until its name was changed to ObamaCare. What's in a name?
Republican voters don't judge a proposal on its merit, but on which party is backing it at the time.
15
Adler and Gluck note that "the opinion by Judge Reed O’Connor is an exercise of raw judicial power, unmoored from the relevant doctrines concerning when judges may strike down a whole law because of a single alleged legal infirmity buried within."
This decision runs afoul of the 2012 Supreme Court decision. There is no basis on which this judge can strike the entire law other than as a matter of political power grab.
This is what happens when the GOP loses elections. They find all kinds of ways and arguments to advance a retrograde agenda. In Michigan and Wisconsin, the outgoing representatives are making no bones about their naked power grab. In the ninth district in North Carolina, they fill in absentee ballots on behalf of voters in order to rig the election result. In Georgia the governor elect was also the one running the election. And, of course, the GOP got two seats on the SCOTUS thanks to McConnell's power play.
I hope all Americans are watching this unseemly actions and will oust every single member of the Republican party in the ensuing elections. That party needs a wholesale purging and cleansing; it is our sacred duty to help them in this regard.
156
@chickenlover
To paraphrase the Republican mantra:
"LOCK THEM UP" everyone of the right wing extremists that are passing themselves off as "conservatives".
@chickenlover-- Unfortunately not all Americans are watching or reading about this. They won't and can't. They don't have the critical reading or thinking skills, don't want any, just want to watch TV (whatever channel), take their drug of choice (light beer, et al), or hopefully go to work and try to save their family. Health coverage? Ooops! Whatever happened to that? Dunno, just ain't here anymore, can't figure out how that happened, see they were trying to fool us all along. I told you! Let's vote for that outsider guy who tells it like he knows it (as if!) and will save us yet with all his yackin'!
1
This decision by the Texas federal court in invalidating the entire law throws the baby out with the bathwater. Republicans strangely wanted to strike down the provision in the law that covered pre-existing conditions. The midterm results show how wildly unpopular that is, with many Democratic candidates winning with messages in support of ACA. The provision on pre-existing conditions is only one thing that this ruling would eliminate - other consumer protections include banning a cap on lifetime coverage and the 10 essential benefits that give all consumers robust healthcare coverage.
If this ruling holds, Kaiser Foundation estimates that 52 million Americans between ages of 18-64, 27% of the population, will lose access to healthcare. Seventeen million people who have healthcare through the ACA exchanges and Medicaid will lose coverage. The consequences to millions of Americans will be devastating.
Ideology, blind to human needs, has put us in this place. By shattering the healthcare law this holiday season, U.S. District Judge Reed O'Connor is not only the Grinch Who Stole Christmas, he is the Grinch Who Stole Healthcare from millions of his countrymen.
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There is a legal theory that one must come into court with clean hands. So Congress zeros out the penalty for not signing up. This in effect sets up this spurious decision sought by Republican governed states.
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While we await the ultimate decision of the Supreme Court, what better time than now for Democrats to take the Medicare For All campaign up a notch or ten?
Look at this ruling as a blessing in disguise. The lucky 20 million or so Americans who have coverage under the ACA are not going to lose it right away, if ever, and meanwhile, the 30 million who have virtually no coverage at all will gain the additional clout to convince their reps that government-sponsored single payer insurance, from cradle to grave, is the only thing that will prevent these cruel and frivolous rulings in the future.
Just let the Supreme Court uphold this insane decision. Just watch the GOP sink when/if their voters are kicked to the curb.
Democratic leaders should finally be learning that negotiating with Republicans to the extent of adopting an actual GOP scheme (from the conservative Heritage Foundation) is not only a crazy strategy, it keeps giving ammunition to the experts who believe -- correctly, in my view -- that requiring citizens to purchase "product" from an essentially predatory cartel of private insurers is the wrong way to go about covering people. These companies skim trillions off the top of US medical care expenditures, making this country's market-based system the most costly and least effective in the civilized world. Better to require everybody to pay taxes, according to their means, to truly cover everybody. The reactionary judges won't have a leg to stand on.
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It’s not going to happen, voters would go bananas at the taxes and rwtionings, and please, please, please stop pretending that single-payer is the one and only type of universal coverage.
And no, every other country does NOT have single-payer.
This kind of attack on your own side is how we got Trump.
1
A couple of thoughts. First, if a "liberal" leaning judge had ruled on a issue such as this against the "conservative" beliefs, there would be outcry from Trump and his minions about "legislating from the bench".
Second, perhaps the judge is currying favor from Trump in hopes of an appointment to a higher court should there be a vacancy...
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Attacking the judiciary for partisanship over a ruling you dislike is no different than trump doing it.
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@Dr. Trey: Unless the partisanship can be proven. Adler and Gluck have made a solid case here. If it turns out that the higher court agrees, then the criticism of Judge O'Connor is probably merited. Trump's 2016 attacks on Judge Curiel, who presided over the Trump University lawsuit, was not based on any evidence of partisanship by the judge, but rather on Curiel's Mexican heritage. There is a difference.
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@Dr. Trey
True in principle. False on premise. How does a lower court decide to reverse a Supreme court decision?
Everybody has the right to criticize. What you base the criticism on has to be legit however, and that is the difference here.
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@drtrey: You clearly have not read the article that you criticize here. And/or you don't understand the principles underlying our judicial system. There is no question to anyone with any legal experience that this judge engaged in blatant judicial activism. And/or this judge is incompetent and should be impeached.
Unfortunately, the 5th Circuit Court of Appeals, to whom this decision will be appealed, has a history of judicial activism and may uphold this ruling.
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Wouldn't this tortured legal logic apply to car insurance as well? What about social security, medicare and medicaid? Can I stop paying taxes now? Judge O'Connor is like the Congressman who yelled "You Lie" during Obama's state of the union address, it might feel good to lash out but, in the end, it's not your place to do so.
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I. Can't. Believe. This. Will. Stand. Having said that, the politics are clear. If the ACA were to be terminated, I would be surprised if there is a single republican elected anywhere in the US in 2020.
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If you don't have the votes to strike down a law, but have the votes to change it, by striking down a required part, then your change is unconstitutional, not the original law. SCOTUS should ax the entire 2017 tax law.
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It’s amazing to watch the blatant hypocrisy of both political extremes.
When a liberal judge strikes down a law or policy as unconstitutional - liberals express joy the constitution is being enforced, and conservatives decry the outrageous act of judicial activism.
When a conservative judge does the same, conservatives rejoice and liberals cry foul.
If only consistency reigned.
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@Esquire
The article was written by two experts each on one side of the ACA.
That should tell you something.
Prediction: The Supreme Court will not take this case
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One of the first things I learned in law school many years ago was to never cite a law professor's opinion in a legal brief. I think that holds true for today.
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Remember, “repeal” than it was “repeal and replace with something much,much better” and now it is just plane sabotage destroy and hide? For the price of one useless aircraft carrier and all related expenses, everyone in this country could have free healthcare. There are a lot of very cruel people in this country who elect cruel Presidents and cruel Senators and Congressmen. 20 million people with suffer at the hands of their cruelty.
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Individual responsibility is the supposed policy of the GOP except when it comes to health insurance. Why should the rest of us pay for your healthcare costs when you show up at the ER without insurance? Let's see what happens when the hospitals in these GOP states close and there is no ER to go to. These so called christians would be thrown out of the temple by Jesus.
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I do continue to be amazed at the relative quietness of the insurance, medical, pharmaceutical, home healthcare et.al. business sectors. Healthy profits. Perhaps it does go to show political lobbying and donations do provide excellent ROIs.
May I suggest that everyone take a look back at the true value of your health insurance pre-ACA, then during ACA and then post-ACA. That is your baseline from which you should judge your health insurance going forward. What did coverage did you really have and what was the quality of that coverage.
For those you who may not know or recall, Warren Kenneth Paxton Jr., the 51st Attorney General of Texas led this latest effort against the ACA. Mr. Paxton is under a three count indictment on felony charges of securities fraud and failing to register properly with the Texas state securities board. His trial was set for December 2017 in Harris County, Houston, TX after a change in venue from McKinney, Collin County, TX. The trial was postponed once again. Mr. Paxton ran for re-election and won in 2018. He’s one of the few sitting State officials in America who are under indictment.
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@PDoublin
My insurance agent told me they were able to keep costs lower by refusing to insure some people.
Insurance companies now have to take everyone. So that could legitimately raise insurance premiums.
But I don't mind paying a little more if it means people with pre-existing conditions get healthcare.
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@Independent
To achieve affordability, Y\you either have to include almost everybody to spread the costs - [that's what the mandate was for - to make healthier people join the ACA] -- or you cherry pick and avoid sick people to keep costs down.
@Independent
What would Jesus think of your willingness to sacrifice some of your personal wealth in order to help others? He'd probably tell you that you should have spent that money on guns in order to protect your family from rampaging hordes of desperate migrants seeking asylum which is what those unarmed innkeepers in Bethlehem should have done in order to preserve their manger.
Before you ask, I go to church twice a year so I'm totally a Bible expert qualified to speak on behalf an almighty deity.
If ObamaCare is so wonderful....
Why did congress exempt themselves?
Why did they have to FORCE people to join?
Thank God we have judges willing to protect us from an out of control government.
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@George Orwell
And what is the Republican plan for healthcare?
They will allow companies to not take pre-existing conditions.
And they will allow policies that have lower premiums because of very high co-pays and worse coverage. Otherwise known as junk policies.
We are the only first world industrial country without universal coverage.
And we pay twice as much per person as those other countries.
You may not be paying directly but your employer is. And those premiums leave less for raises.
And we have parts of the US with infant mortality rates of a second-world country.
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I believe members of Congress must choose between ACA or buying private insurance. But their subsidies for ACA is considerable.
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Pretty sure God doesn’t care about the American judiciary. If he did, we’d all live a million years with the best health care ever. Since we don’t, God either doesn’t exist, is powerless to act, or is entirely malevolent to let us live these meek little lives.
Well, when a federal district judge anywhere in the USA repeals a presidential executive order, e.g. concerning Trump's travel ban for certain foreign states, the NYT lauds such decisions as an expression of judicial indepedence and functioning checks and balances. And the NYT is outraged, when Trump characterizes the judge as an "Obama judge".
But when a federal district judge decides that a law being enacted under Pres. Obama is unconstitutional and therefore unvoid, it is - for the NYT - a "partisan" and activist abuse of judicial power. And the NYT does not forget to mention that the deciding judge was appointed under Pres. George W. Bush (so to say, a "Bush judge").
Isn't this double standard kind of hypocritical?
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@Carsten Neumann The New York Times also published opinion pieces saying that upholding the travel ban was the right thing to do.
@Carsten Neumann
You think so? We all have a right to criticize. What you base it on is what matters - bona fide or bogus!
For my family, ‘Obamacare’ worked flawlessly until we turned 65.
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@Al
Same here. Because of a pre-existing condition, I couldn't buy health insurance for 20 yrs, leading to bankruptcy, loss of my home & disability. Thank God, I was finally able to get insurance through Obamacare. I now have Medicare and am no longer terrified all the time but I feel for people who are still trapped in this madness. (P.S. Thanks Obama, with all my heart).
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In his ruling, Judge Reed O’Connor of the Federal District Court in Fort Worth said that the individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’s tax power.”
What Congress did was to set the tax rate for failure to buy coverage to a new value, ZERO.
Judge O'Connor is saying that because Congress set a tax rate at zero, they broke the law. Had they set the tax rate to any value above zero ($0.01 or more), his argument falls apart.
He is saying that the AMOUNT of the tax is the issue.
That is NONSENSE.
This argument should (and I suggest, will) be overturned.
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@Joe From Boston Thank you, well said!
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This is the result of two main ingredients in this toxic political system we're allowed to evolve:
1. Judges who make careers by running for office, making the most outrageous and conservative promises to voters they scare into compliance in exchange for promises of the most strict rulings, all the while accepting corporate donations to fund their campaigns of divide and conquer.
2. Money in politics and after some years of being elected to the bench, being picked by politicians who are just as beholden.
That is how we get partisan rulings in what is the oligarchy that America has become.
The will of the people? Common good? All gone. Redundant.
--
Things Trump Did While You Weren’t Looking https://wp.me/p2KJ3H-2ZW
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This ruling is very much like the original ACA - not based on solid legal footing, but rather, rammed down the throats of the American people by the blunt force of a court legislating as it sees fit. We all knew this was the case when Pelosi proclaimed that we just had to 'pass it to see what's in it' and when Roberts had to rewrite it himself before he stomach it.
Worst decision of the past six decades was allowing government to have a role in US health care policy & reimbursement. They have created a botched & bankrupt system that cannot even assure an adequate supply of newly trained physicians given that Medicare controls intern & residency spots.
Milton Friedman was right. Put the government in charge of the Sahara and within five years we'll have a shortage of sand.
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@Alan "Put the government in charge of the Sahara and within five years we'll have a shortage of sand."
I can only assume you'd like to see the Pentagon privatized and responsibility for America's national defense handed over completely to a bunch of mercenaries who have to hold bake sales to pay for their weapons and ammunition, since obviously "the government" can't do a good job of defending the country. Is that the case?
Regarding this topic, I never cease to be amazed by Americans who apparently believe that health insurance companies with a profit motive actually have the best interests of their policyholders in mind. They do not. The CEOs of Aetna, Cigna & Co. make more money in a year than LeBron James (look it up) and they simply do not give a damn about the well-being of policyholders.
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@Alan
Fortunately the free market will step in and provide all the sand we need. We might not all be able to afford our fair share of sand and if you're in desperate need of sand because of a a pre-existing condition then get ready to take out some payday loans and reverse mortgage because you're about to get charged a huge premium for sand. It's just how the free market works in this, the best of all possible worlds.
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@Alan
Did you complain when Republicans did worse with their 2017 tax bill?
On the other hand, Obama negotiated and compromised with Republicans for a year to come up with the ACA.
Only to have not one Republican vote for it.
The last minute details that Pelosi was talking about was the final compromise between House and Senate.
And what is the Republican plan for healthcare? It was Obama-care, based on Romney-care based on the Heritage Foundation.
The individual mandate is the Republican principle of individual accountability and responsibility.
The health exchanges is the Republican principle of free market competition.
When Obama agreed to those, Republicans called it "government take over of healthcare" and "death panels."
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I went on the Colorado Exchange yesterday and found out there are no plans for me. The system is broken and we need a new approach to health care. I have 3 years to go for Medicare; I hope that still exists by then.
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The timing of the release of the ruling says it all in terms of judicial activism and pure political motivation. Today is the last day for signing up for health care, so here's a poke in the eye. This case in Texas was argued long before the mid-terms. The judge was holding the judgment until after the mid-terms to save Republicans. when every Republican ran on saying, disingenuously, that they were saving health care coverage. Josh Hawley, presently AG in Missouri, is one of the AGs who brought this lawsuit. When running for senate against Claire McCaskill, he mysteriously forgot he had done this, as he pointed out he has a child with a pre-existing condition. Now he will be in the senate, where he will vote against health care coverage for people while he gets cadillac coverage from the federal government. As does this federal judge.
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@Slr
"...while he gets cadillac coverage from the federal government. As does this federal judge."
There lies one of the problems. None of these so-called representatives & judges have a taste of the bad medicine (pun intended) that the rest of the citizenry have to swallow. None have to struggle with this issue as they get cradle-to-grave gold-plated coverage PAID BY THE TAXPAYERS--to whom they would deny coverage. So, we are MANDATED to pay for theirs!
This should be exposed & repeated 24/7 by the citizenry...until these privileges (not rights) are rescinded. Reducing their outrageously high salaries would be the next step.
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The decision is not well-reasoned. It will be overturned by the Fifth Circuit Court of Appeals and the United States Supreme Court will then deny certiorari review. Enjoy your moment, those who rejoice in the misery poor folks who need this program to live, it will be brief.
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Quite enlightening analysis that taught me much. It is a very good point that the Courts must rely on the literal interpretation of the written law passed by Congress. The Republican party has been utilizing the Judicial venues to legislate that which they can't accomplish in Congress. It is the new means of legislating they had accused the Democrats of doing. It's just another example of the undemocratic strategy of the Republican party that now enjoys monopoly power until January, so look for possible hasty actions.
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This article makes an important point; this ruling is simply a bad ruling, and it is likely to be overturned on the next level up. The judge is something of an outlier, and this isn't as big news as it seems. Yes, the government CAN make you buy health insurance, just as they can make you pay taxes and do things such as require you to have car insurance.
But more importantly, the individual mandate should not be overturned because it is good public policy. Some out on the fringe argue that the individual mandate takes away their freedom. But consider what happens when someone does not have health insurance. Most will get lucky, but some will have car crashes or come down with cancer. And despite their inability to pay they will still be treated at our excellent hospitals and run up multi-hundred thousand dollars bills. And what happens when they stiff the hospital? The hospital eats the cost, which is then borne by government payors and the hospital's other customers who have been responsible enough to procure insurance - us. So bottom line, the "freedom" to not have to have health insurance translates into the freedom to stick us with their bills!
People will eventually figure this out. Note how they have figured out how important it is to have the ACA provision for coverage for pre-existing conditions. Here in Wisconsin, Governor Walker's too-late realization of this helps explain his recent narrow defeat. And even President Trump has figured that one out.
30
@Jerry Schulz Auto insurance is not mandated by the Federal government. Auto insurance is mandated by state governments and car owners are forced to buy it not to protect themselves from unexpected expenses due to a collision of their own creation. Auto insurance is mandated to ensure that there is financial protection for the OTHER PARTY that might suffer harm due to your negligence in operating a vehicle.
It is a totally false comparison to put auto and health insurance side by side and argue that because we must buy auto coverage therefore we must by health coverage. If you don't own a car, you are not compelled to have auto insurance.
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@Alan
Great argument, you have me convinced.
So, if you don't have a life, you don't have to buy insurance!
Seriously, in the end, health insurance doesn't protect the insured as much as it protects the rest of us from having to pay the bills of the uninsured.
9
@Alan
Give up your wrong-headed thinking, we need universal health care, and the ACA helps with that. People need to be able to get medical care.
1
then there's the flip side of the argument:
the tax law is illegal because the ACA is a law that was in place first and was deemed constitutional by the supreme court .
thus the tax law's infringement on the ACA makes it unconstitutional.
14
Fortunately the GOP has a plan that will be way better than the ACA. We know that they have a really good plan because they've told us that they have it. They just haven't revealed what the plan is. Apparently it's so good that they can't show it to anyone yet. But they definitely have it and, man, it's really awesome. Or so they've told us. I bet it's really really good.
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@Albert Ross
The Republican plan isn't just really, really good; it's the best. There's never been a bigger, better, more beautiful health care plan than the one Republicans have - it's the best ever conceived throughout the world and at any time. It's the health care equivalent of the big, beautiful wall that Mexico is building on our southern border. Believe me, folks, believe me.
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@Albert Ross Trump made many campaign promises and proclaims loudly that promises made were kept. Right. Trump claimed he would repeal "Obamacare" and replace it with something grand-he also claimed Mexico would pay for his beautiful wall.
All of this winning....
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@Albert Ross
You forgot to mention that Trump has the best people working on the new health care plan. That is, the ones not yet indicted. But hey, whoever remains, they're the best!
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Sadly, Judge O'Connor has been a go-to stalwart for Texas politicians and their national associates to run to for these decisions - not his first. Not entirely sure how the U.S. District Court for that District ends up steering all cases of this type to this judge - forum shopping is pretty much verboten. In any event, we need to be prepared for much more of this nonsensical "reasoning" in cases around the country as the newly minted crop of "unqualified" and right wing Federalist society judges have these cases dropped in their laps for decisions.
150
Shocking that there might be a conservative equivalent to the ultra-liberal Ninth Circuit.
4
These are interesting times when legal scholars on opposite sides of a particular issue still join forces to protest the direction the legal system is headed in this country.
They hope that John Roberts, fearing a look of political partisanship, will show his muscle and protect the rule of law should this ruling make it to the Supreme Court. But I'm not so sure.
The courts, like everything else Trump has touched, have turned not to gold but to something resembling gilded plate. It shines like gold, but underneath is nothing more than a partisan's fool's gold.
I for one have lost all faith that the courts will save the country from itself. And I fear I am not alone.
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@avrds Roberts will move slowly only so that political opposition doesn't increase. He knows that constant one sided republican rulings will motivate the democrats base. He does want what his overlords want but will be politically conscious of any undesirable backlash. So he will occasional pretend to be bipartisan as means to maintain at least the GOP senate. However, if he didn't have to worry about politics, he would proceed quickly to rule in favor of everything the federalist society wants. My guess is that he will rule in favor of the federalist view on big money issues and then pretend to be bipartisan on more social issues. Money after all is the real concern of the GOP and their owners. The social issues are simply good fodder for riling up their base.
9
When a judge struck down parts of President Trump's travel ban, conservatives and right-wing pundits were apoplectic at yet another example of judicial activism and overreach by a liberal judge. But in striking down the entire Affordable Care act, Judge O'Connor is simply following the Constitution and "originalist" legal theory, not his own political leanings. Right, got it. It's similar to when Republicans respect election results in their favor, but when they aren't, try to disenfranchise potential Democratic voters and nullify Democratic power in states like Wisconsin and Michigan.
With Justice Kavanaugh's appointment to the Supreme Court, perhaps we should expect the ACA to be invalidated along similar flimsy legal grounds. After all, did Thomas Jefferson have health insurance?
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@jrinsc, maybe not. And if the Kavanaugh court strikes the ACA down, and millions of us are left without health coverage, that other originalist idea, the vote, will determine what happens to the GOP.
31
If Thomas Jefferson would have had health insurance, would he have taken a flu shot? A shot against pneumonia? Shingles? Would he have created and transmitted “alt-facts?” Perhaps of more relevance, would he have been personally accountable for his words and deeds?Would today’s “Originalists” know? Would he have been elected President of the USA as a committed Deist; not being Christian. Jewish. Buddhist. Muslim. Or any of the other faiths. In actuality or in name only.
2
The thinness of the legal basis aside, this decision has several practical consequences, none of which are positive. Indeed, the only question is how much damage might this ruling cause to the health insurance markets.
In the (apparently unlikely?) instance that the present opinion is upheld on appeal and thus through the SCOTUS it is utmost damage. Back to 2009, or worse.
The more likely eventuality is that one or more of the states AGs who brought the suit continue in the face of appeals by a state seeking to keep the ACA's marketplace, or the ACA's patient protections. That will, in the public's mind, create uncertainty. Such uncertainty will continue the damaging erosion of enrollment numbers (seen currently as a result of the DHS' shameless sabotage of the ACA). The longer such appeals take, the greater the damage incurred.
So, while I hope the authors confidence in this decision's final end is sound, the path to that desirable end is littered with ugly outcomes for the needs and protections for the general populace.
21
@sandgk
So many Americans will die from lack of health care if the Texas judge’s ruling is upheld, we will have to open the borders to repopulate America.
1
If we were a moral society, we would have Medicare for All. We already cover the sickest and oldest population--a population that would throw out any lawmaker threatening to weaken or takeaway their Medicare no matter their political persuasion. Yet covering the youngest and healthiest population is just to big of an obstacle to overcome. Bull.
The rest of us our left to fend for ourselves because a majority of our lawmakers are bought off by the Medical Industrial Complex. They know our healthcare system is broken, leaving millions without coverage, while bankrupting millions more, but they simply don't care. No other industrialized Country in the World permits such an inhumane system to exist.
Any lawmaker opposing Medicare for All is complicit in the daily deaths of Americans who cannot access affordable healthcare.
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@ScottW--I'm with you but be careful of your use of the term "Medicare for All." You mean a "National Health Care Program." Medicare pays 80% of doctors bills; 20% is paid by the patient. Twenty percent can be a huge bill. And by the way that 20% is after a certain deductible. Hospital coverage is not good with Medicare for long term stays; people end up paying huge amounts and often go bankrupt in that situation. So are you sure you want "Medicare for All?"
38
@Frank Polling shows support increases when the program is called "Medicare for All" as opposed to "single payer." My concern about the phrase "National Health Care Program" is it can be a watered down version of Medicare, which as you point out, is already be weakened leaving recipients with huge medical bills. Our healthcare system is too expensive and that has to change. If it does not, we might as well end this experiment called the U.S. because it won't be worth living in for the vast majority.
47
Frank, there are Medicare Advantage insurance plans available which help with extra costs. This would, I imagine, continue with a Medicare for all situation. In fact, what else would health insurance companies have to do with their time otherwise? Considering the insurance companies trade on the stock market if they simply disappear there would be some, umm, chaos as a result.
13
So if the Supreme Court reverses this outrageous decision will they also remove the offending judge from the bench for incompetence and overt political bias?
Justice Roberts is being tested here. In the next decade we are going to see more and more of this overtly political pollution in the judiciary as the Trump appointees begin making their impact on the judiciary.
Something tells me that this is the beginning of the end of an "impartial" judiciary and that this branch of government, just like the others, has been irreversibly corrupted by the Republican Party.
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@KM Federal court judges have lifetime tenure and can only be impeached - and not because they rendered a bad decision. Although in this case, I would be thrilled to get rid of this guy.
4
@KM - Per the Constitution, federal judges have life tenure unless impeached by Congress. The Chief Justice has no power to remove judges.
1
@KM
Agreed. Another brick in the edifice of democracy removed.
2
Anyone else remember the "old days" when Republicans decried "activist judges"?
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@345palm I can't tell you how often I think about this as they stack the courts with far right, actvitst, judges. As with all things republican, the rules only apply to Democrats (see Wisconsin for a recent example)
28
@345palm
This is the one Trump blessing - rulings like this; policies that violate any sense of decency; conspiracies to change fundamental aspects of American democracy - are serving to awaken the sleeping. Change is in the air.
7
@345palm
Indeed. Never forget, however, the two core principles of today’s Republicans: 1.) The never ending, outsized sense of victimization, and 2.) hypocrisy.
1
Knowing that it will be appealed it doesn't mean anything at this point. It will only mean something when it gets to the Supreme Court.
15
The Republicans want to get rid of the ACA. They've been trying to do that since the law was passed. Since they've had a majority in the Congress and Trump in the WH, they've held numerous votes to repeal the ACA, which only barely failed. They did manage to change the law in the one respect at issue in this lawsuit and surprise, surprise, some Republican governors and attorneys general got together and filed a lawsuit in the jurisdiction of this judge who declared the whole thing unconstitutional. This is not an accident. It was planned. The Republicans have also made changes to make the law work less favorably so as to sway public opinion against it. This lawsuit was one of the things that the Wisconsin legislature, with its Republican majority, just said that the new governor and attorney general cannot withdraw from. Failing repeal the Republicans are doing everything they can to get rid of the ACA. It should be pretty obvious. It's an orchestrated effort.
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