Does Texas Obamacare Judge Have Pre-Existing Brain Damage From Hitting Self In Head With Frying Pan? Yes.

Photo: Beth Cogswell, Creative Commons license 2.0

That craptastic lawsuit against the Affordable Care Act was the subject of a hearing at a federal courthouse in Fort Worth last week. And holy shitbeans, the judge hearing the case, US District Judge Reed O'Connor, sure sounds like he's just ITCHING to get the chance to throw out a major law passed under Barack Obama, possibly in hopes that one day a statue will be raised in his honor. It will be a statue of a poor person in the street after being ejected from an emergency room.

The lawsuit, brought by Texas AG Ken "I Get To Be Governor Next!" Paxton and a bunch of other Republican attorneys general, is based on a simple idea that should be so stupid that any judge would throw the case out, ideally while chuckling and imposing a fine for a frivolous lawsuit: Since the Supremes found the individual mandate was constitutional because Congress has the power to tax, the 2017 Tax Cut for Rich Fuckwads -- which put the "tax" for not having insurance at "zero" -- renders the entire law unconstitutional, because if there's no tax on the individual mandate, it ... can't be called a tax, and so it is unconstitutional? (We guess?!) Like we said, it is ARE YOU FUCKIN KIDDING ME DUMB. That means no Medicaid expansion, no kids on parents' insurance until the age of 26, no more exchanges, and especially, no more protections for preexisting conditions.

The Trump administration found the argument so persuasive that the DOJ decided it would no longer defend the individual mandate or the protections for preexisting conditions, but it would like other parts of the law to remain in place for now. Guess somebody at the DOJ has a kid aged between 18 and 26. Fortunately, a bunch of AGs from blue states, led by California, have taken up the defense of the law.

Vox offers a nice 'splainer on why legal scholars find Texas's argument "ludicrous" -- or, if you prefer, "ridiculous," and also "absurd." The main reason is that there's nothing in the law itself saying that if the mandate falls, then the insurance regulations have to be rescinded as well. That's not just from a liberal crazypants, either: Libertarian legal scholar Jonathan Adler, who's no fan of Obamacare and has supported other lawsuits against it, says that just because Congress in 2017 reduced the tax penalty for not having insurance to $0, that has no effect on the rest of the law. If Congress intended to kill the entire program, it would have to actually repeal Obamacare, which as you may recall from all of last year, it didn't manage to do.

"Because Congress A claimed this provision (as originally enacted) was an essential component to the broader scheme, plaintiffs claim this still applies to the subsequent revision (even though Congress B didn't say so), and thereby want the whole statute to go down. That's just absurd," he said by email.

But gosh, oh golly, this account by Timothy Jost, emeritus professor at Washington and Lee University School of Law, who attended the hearing last week, sure presents Judge O'Connor as simply captivated by the plaintiffs' exciting legal theories. Jost says O'Connor

showed no sign of having read the amicus briefs filed by virtually every stakeholder in the American healthcare system—doctors, hospitals, insurers, patient groups, consumer organizations, small businesses, older Americans, as well as numerous health economists and public health experts--demonstrating those consequences.

Jost also noticed what appears to be a shift in the position of the Justice Department, which had said it didn't want to defend the ACA at all. At the hearing, the DOJ's attorney took a more nuanced approach to the idea of striking down protections for preexisting conditions right away:

[The] DOJ seemed to be having second thoughts, begging the court not to eliminate preexisting condition protections immediately and not to rule on the case until after the 2019 open enrollment period ends (incidentally, after the midterm elections). The DOJ argued that an immediate injunction could "cause chaos in the insurance markets" and that adjusting to an insurance market without the mandate would be a "multiyear" process. [emphasis added -- Dok Zoom]

Funny, that very convenient request to hold off on killing the ACA until after the midterms was also noticed by the New York Times, although the DOJ attorney explained it was really for sure more about not causing chaos during ACA open enrollment, which has been such a concern for the administration in the past. "We certainly don't want people to lose their health insurance going into next year," he said, and that can surely be the only reason he's so very concerned, you bet.

The California attorneys argued that the individual mandate wasn't any sort of keystone to the ACA as a whole, particularly from a legal standpoint (though as a practical matter, yes, it helped to keep premiums down by getting younger, healthier customers into the risk pool). They also noted Republican lawmakers' statements that the elimination of the tax penalty was not intended to bring down the entire law, and argued that while killing off protections for preexisting conditions would be devastating to tens of millions of Americans, leaving them in place wouldn't harm the plaintiffs at all, particularly since they now won't even pay a penalty for not being insured. (If they get hit by a truck or a major illness, on the other hand, they're now free to try to pay for it themselves, HOORAY.)

Jost says O'Connor appeared to have little interest at all in the defense case. Instead, the judge

questioned the attorneys for the next hour trying to elicit support for the plaintiffs' arguments. Doesn't the ACA still say people "shall" have coverage? Didn't Congress by zeroing out the tax in 2017 remove the one justification the Supreme Court found for finding the mandate constitutional? Don't the "findings" in the mandate section of the original ACA say that the mandate is "essential" to creating markets where preexisting conditions could be covered? (He ignored powerful evidence that the finding was wrong) [...] Didn't the dissent in the earlier Supreme Court case establish that once the mandate disappears, the whole ACA collapses? Can't the court simply recite the magic formula proposed by the plaintiffs and make the ACA disappear?

Yr Wonkette is not a lawyer, but we have to wonder whether it's really the judge's role to join the plaintiffs in hammering at the defense's case like that.

Judge O'Connor is expected to rule sometime in the next few weeks -- the Texas Tribune notes that on his way out of the courtroom, he said he would "get something out just as quickly as I can." We're not really expecting it to be informed by a lot of fancy-schmancy legal scholarship, though.

[Vox / Balkinization / NYT / Texas Tribune / Image: Beth Cogswell on Flickr; Creative Commons license 2.0]

Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.


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