By Nicholas Bagley
The Washington Post, December 15, 2018
Late Friday night, a district court in Texas declared the entire Affordable Care Act unconstitutional — lock, stock and barrel. That includes not only the individual mandate and the protections for people with preexisting conditions, but also the entire Medicaid expansion as well as a host of other ACA rules without any connection at all to health insurance.
The logic of the ruling is as difficult to follow as it is to defend, and it sets the stage for yet another round of high-stakes constitutional litigation over the future of health care in the United States.
As part of their 2017 tax reform package, congressional Republicans amended the ACA to eliminate the tax penalty. Because they couldn’t summon a filibuster-proof majority necessary to make substantive amendments, they zeroed the penalty out without also eliminating the naked instruction to buy insurance. And they trumpeted to anyone who would listen that they repealed the individual mandate — which, for all practical purposes, is precisely what they did.
But that’s not how U.S. District Judge Reed O’Connor saw it. In his view, the penalty-free mandate still amounted to a coercive exercise of government power. That meant that two individuals who’d been conscripted by red states as plaintiffs had standing to sue.
To put it bluntly, that makes zero sense. The judge asserted — without any support — that the penalty-free mandate “requires [the plaintiffs] to purchase and maintain certain health-insurance coverage.” But that’s not right. An unenforceable instruction to purchase insurance is not coercive in the slightest.
We know what Congress wanted to do in 2017: repeal the mandate and leave the rest of the act intact. Its judgment could not have been plainer.
That’s not how O’Connor sees it. In perhaps the most remarkable passage in a remarkable opinion, he wrote that the 2017 Congress “intended to preserve the Individual Mandate because the 2017 Congress, like the 2010 Congress, knew that provision is essential to the ACA.”
Your jaw should be on the floor. On no account did Congress in 2017 “intend to preserve” the individual mandate. It meant to get rid of the loathed mandate — and it did, by eliminating the penalty that gave it force and effect.
In his contempt for the ACA, O’Connor blinded himself to all this. Instead, he decided that what Congress “really” wanted was to invalidate the entire ACA.
What happens next? California has already said it will appeal, and the decision won’t take effect while that appeal is pending.
So nothing changes for the time being. And nothing should change.
This case is different; it’s an exercise of raw judicial activism. Don’t for a moment mistake it for the rule of law.
Nicholas Bagley is a professor of law at the University of Michigan Law School.
https://www.washingtonpost.com…
The Texas ruling against Obamacare is a boon to Medicare-for-all
By Ezra Klein
Vox, December 14, 2018
The Texas ruling finding the Affordable Care Act unconstitutional is ludicrous in its reasoning and unlikely to survive appeal. It argues, in short, that since Congress removed the penalty from the individual mandate, the individual mandate is no longer a tax; because the individual mandate is not a tax, it is no longer constitutional; and if the mandate is no longer constitutional, the entire law must be judged unconstitutional.
But if you want to know why Democrats are suddenly dotting the landscape with new proposals for Medicare-for-all and Medicaid-for-all, this ruling is a useful artifact. The basic idea behind Obamacare was that a public-private system based on Mitt Romney’s Massachusetts reforms would command some Republican support, or at least acceptance, and thus be easier to pass and to expand.
Republicans have proven that theory wrong. Instead, the private-public construction of Obamacare has given opportunistic Republicans their most effective attacks on the bill. Those attacks have been legal, like this assault on the regulations governing private insurance purchase, and political, like the attacks on high deductibles and complex shopping schemes.
But with Obamacare under constant threat, Republicans have refocused Democrats on building what they failed to build in 2010: a universal health care system simple enough and popular enough that it is safe from constant political and legal assault. And that means some version of Medicare-for-all.
But nearly a decade of constant and cynical assault on what was supposed to be a compromise bill has pushed the Democratic Party left on health care policy, and persuaded Democrats everywhere that trying to compromise or placate Republicans is foolish. The legacy of the GOP’s Obamacare repeal strategy won’t be the Affordable Care Act’s destruction, but Medicare-for-all’s construction.
Comment:
By Don McCanne, M.D.
There is nobody more knowledgeable on the Republican state attorneys general challenge of the Affordable Care Act (ACA) than Michigan law professor Nicholas Bagley. He describes the ridiculousness of the arguments made by U.S. District Judge Reed O’Connor in his act of judicial activism designed to declare the entire Affordable Care Act unconstitutional and thus invalid.
Briefly, Bagley refutes the judge’s two leading arguments: 1) That Congress’ cancellation of the penalty to fail to comply with the individual mandate to purchase health insurance removes this penalty as a federal tax which then he uses to invalidate, as not being applicable, the previous Supreme Court finding that the penalty is a legitimate federal tax that upholds the constitutionality of the individual mandate, and 2) That the mandate is essential to the entire legislation which would otherwise fall apart without it, and thus it is not severable; that is, he rules that removing the mandate invalidates the entire act. As Bagley says, this is “an exercise of raw judicial activism,” and not the rule of law.
We normally should be able to feel secure that the Appeals Court, and eventually the Supreme Court, would reverse this ruling, but that is not assured when we have a flawed process that selects a Supreme Court justice that uses the statement, “I like beer,” to explain away his poor judgment in the past. It is likely the decision will be reversed, but not only should we be prepared in the event that it is not, we should also use this historical moment to advance the cause of health care justice for all.
Ezra Klein describes how a decade of Republican opposition to ACA has only shown that any effort to placate or compromise would be futile, and thus we should move forward with construction of Medicare for All. Medicare is the law of the land and the half century of its continued existence solidifies the constitutionality of the program.
Ironically, by relying on a pair of non sequiturs for his decision, Judge O’Connor is awakening us to the imperative of moving forward with much needed reform right now, but reform that works best for the people and not reform that tries to fulfill the fantasies of right-wing ideologues like him.
The greatest risk at the moment is that the passion for reversing Judge O’Connor’s decision may transfer into passion for support of lesser measures: 1) moderates supporting grossly inadequate policies such as a public option or Medicare buy-in, and value-based purchasing proposals such as accountable care organizations and other MACRA alternative payment models, and 2) conservatives supporting their pet policies of consumer-directed health care, including an expansion of health savings accounts, and expanding the insurance market with inexpensive, but nearly worthless bare bones coverage.
The reform we need to aim for should not be just any old thing labeled Medicare, but it should be true health care nirvana: Single Payer Medicare for All.
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