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Going into the holiday season, the Fifth Circuit Court of Appeals decided to give Americans the gift of panic attacks about losing their health insurance.

Texas v. United States is a lawsuit filed by a bunch of shitbag Republican attorneys general, seeking to invalidate the Affordable Care Act and take health insurance away from millions of Americans. And this week, they got just a little bit closer to their goal.


The opinion was written by Judge Jennifer Elrod, a George W. Bush appointee, and joined by Judge Kurt Engelhardt, a Trump appointee. Senior Judge Carolyn Dineen King, a Jimmy Carter appointee, dissented.

Let's lawsplain this

Back in 2012, SCOTUS decided National Federation of Independent Business [NFIB] v. Sebelius. The opinion, written by Chief Justice John Roberts, upheld the individual mandate -- which mandated that everyone must be covered by health insurance or pay a fine -- as a tax, and thus constitutional.

It was great that the ACA was upheld, but the way Justice Roberts wrote the opinion was scary. In upholding the individual mandate as a valid tax, the Court also found that the individual mandate was not permissible under other constitutional theories, namely the Commerce Clause and Necessary and Proper Clause.

As part of Trump's tax cut for rich people (AKA the "Tax Cuts and Jobs Act"), the penalty for violating the individual mandate was reduced to $0. The Fifth Circuit panel opinion holds that a $0 penalty cannot be considered a tax, and therefore the individual mandate is unconstitutional:

Now that the shared responsibility payment amount is set at zero, the provision's saving construction is no longer available ... Most fundamentally, the provision no longer yields the "essential feature of any tax" because it does not produce "at least some revenue for the Government." Because the provision no longer produces revenue, it necessarily lacks the three other characteristics that once rendered the provision a tax.

The court reasoned that:

In NFIB, the individual mandate—most naturally read as a command to purchase insurance—was saved from unconstitutionality because it could be read together with the shared responsibility payment as an option to purchase insurance or pay a tax. It could be read this way because the shared responsibility payment produced revenue. It no longer does so. Therefore, the most straightforward reading applies: the mandate is a command. Using that meaning, the individual mandate is unconstitutional.

No, you're not reading this wrong. As we explained earlier this year, "A change Republicans made to the law is, Republicans argue, reason to strike down the law Republicans changed."

Even some Republicans think this is bullshit. After the opinion came out, Republican Senator Lamar Alexander tweeted:

This opinion is GROSS

As expected, the opinion is not just bad. It's also pretty disgusting.

In an apparent effort to show just how reasonable and impartial and totally not partisan the judges were being, the opinion included this in Footnote 3:

Some opponents of the ACA assert that the goal was not to lower health insurance costs, but that the entire law was enacted as part of a fraud on the American people, designed to ultimately lead to a federal, single-payer healthcare system. In a hearing before the House Committee on Oversight and Government Reform, for example, Representative Kerry Bentivolio suggested that Jonathan Gruber, who assisted in crafting the legislation, had "help[ed] the administration deceive the American people on this healthcare act or [told] the truth in [a] video . . . about how [the Act] was a fraud upon the American people."

This is not at all relevant to the opinion, but sure, let's include some conspiracy theory shit for the lulz.

And it wasn't the only footnote included to own the libs. On the next page is Footnote 5:

Opponents of the ACA, however, argue that the Act goes too far in limiting individuals' freedom to choose healthcare coverage. For example, at a House committee hearing, Representative Darrell Issa argued that one of the "false claims" that the Obama administration made in passing the Act was that "[i]f you like your doctor, you will be able to keep your doctor, period. . . . [And i]f you like your [insurance] plan, you can keep your plan."

Isn't it just great when judges act as arms of the right wing of the GOP?!

So what happens now?

You won't lose your health insurance yet. The court held that the individual mandate was unconstitutional but didn't strike down the entire Affordable Care Act. Instead, it sent the case back down to the District Court, to decide whether the rest of the ACA can be severed from the individual mandate. If the individual mandate is severable, the rest of the ACA will remain on the books. If not, millions of Americans could be screwed out of their health insurance.

The Fifth Circuit explained:

It may still be that none of the ACA is severable from the individual mandate, even after this inquiry is concluded. It may be that all of the ACA is severable from the individual mandate. It may also be that some of the ACA is severable from the individual mandate, and some is not. But it is no small thing for unelected, life-tenured judges to declare duly enacted legislation passed by the elected representatives of the American people unconstitutional. The rule of law demands a careful, precise explanation of whether the provisions of the ACA are affected by the unconstitutionality of the individual mandate as it exists today.

Unfortunately, the district judge the panel sent the case back to is Reed O'Connor in Forth Worth, Texas, who is a right-wing Republican wet dream. As we discussed previously, O'Connor is known for granting nationwide injunctions on basically anything sociopathic Republicans ask for -- from blocking enforcement of the Obama administration's guidance for schools on transgender students to family leave for same-sex couples.

Judge O'Connor actually already addressed severability in his initial opinion, and -- surprise, surprise -- he declared that the individual mandate was not severable and the entire ACA was unconstitutional. But the Fifth Circuit was unimpressed with his analysis and decided to send that part back down for further consideration. In particular, the Fifth Circuit panel found that Judge O'Connor did not "address the ACA's provisions with specificity, nor does it discuss how the individual mandate fits within the post-2017 regulatory scheme of the ACA."

So, for now, the ACA lives. And, at this point, it would be essentially impossible for this case to make it to SCOTUS for the 2020 term. So our health insurance is safe ... for now.

As for the long-term, I think it's safe to say that the 2020 elections just got even more important.



[ Fifth Circuit / Lamar Alexander ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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