Reaction to the Texas federal judge’s decision late last Friday striking down the Affordable Care Act (ACA) has been harsh from experts across the political spectrum. Law professors in the Show-Me State that Missourinet spoke to also have a starkly dim view of the ruling.
Yale law professor Abbe Gluck told the Washington Post that the judge, Reed O’Connor, “effectively repealed the entire Affordable Care Act when the 2017 Congress decided not to do so.”
Michael Barnes, former policy advisor at the White House Office of Drug Policy under Republican President George W. Bush called it the decision “deeply flawed”.
He said it attributed intent to Congress that doesn’t exist. Lawmakers on Capitol Hill zeroed out the tax penalty for failing to buy medical insurance as part of a massive tax overhaul passed in late 2017 but left the rest of the health care law intact. Barnes says the judge wrongly determined that Congress intended to eliminate the entire law through that action.
But the case brought by 20 plaintiff states, including Missouri with Attorney General Josh Hawley, sought the same result. The lawsuit contended that with the tax penalty zeroed out, the individual mandate had become unconstitutional and that the rest of the law could not be severed from it.
Judge O’Connor said that the individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’s tax power.”
University of Missouri at Columbia Law Professor Sam Halabi, who specializes in health law, thinks the judge was wrong to determine that an unenforceable mandate invalidates the entire law. “There would be a significant number of both judges and legal scholars who would agree that Judge O’Connor is incorrect with respect to the relationship between the individual mandate and the entirety of the law,” said Halabi.
Washington University in St. Louis Constitutional Law Professor Greg Magarian contends the fact that Congress zeroed out the tax penalty in the mandate means the judge had no mandate left to strike down. ‘ Saying, ‘OK I just did nothing and now I’m going to use the nothing I did as an excuse to strike down the rest of the law’, that’s just kind of absurd,” said Magarian.
Magarian thinks O’Connor, a President George W. Bush appointee, probably doesn’t like the health care law and was looking for a method to do away with it. “The only explanation for the judge’s having done that at all is that it gave him an excuse, or at least an arguable excuse, to strike down the rest of the law, the part of the law that does exist,” Magarian said.
After Judge O’Conner issued his decision, President Trump tweeted out his approval, saying “Great news for America!” But his administration hasn’t pushed for the law’s elimination.
After the Justice Department, which had been defending the law in court for years, announced in June that it would no longer argue for the mandate, the administration took a narrower approach to remove pieces of the statute.
It advised Judge O’Conner that it considered the law unconstitutional only for its requirement to cover preexisting conditions. Professor Halabi said the Department’s purpose in doing so was to carve out an option for less expensive health plans with less coverage to be offered. “If Wyoming offers a certain product that has narrower coverage or coverage only for healthy people or for the conditions affecting healthy people, it could do so nationwide,” Halabi said.
The effort by the Justice Department to do away with preexisting conditions is in sharp contrast to public sentiment. According to the latest Kaiser Family Foundation tracking poll, 62% of those surveyed favor keeping the Affordable Care Act’s provision covering preexisting conditions.
Republicans who ran in November’s election largely embraced the provision even though many of them are on record having voted numerous times in Congress to repeal the health care law. Missouri’s Josh Hawley was widely criticized by Democrats as being hypocritical for endorsing the preservation of preexisting conditions while at the same time being a party to the lawsuit to strike down the law under which the guarantee falls.
Hawley, whose son has a rare chronic bone condition, still easily defeated incumbent Democratic Missouri U.S Senator Claire McCaskill in the election and will be sworn into office January 3rd.
A group of 16 states led by California has taken the Justice Department’s place to defend the healthcare law in court.