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Nuke It From Orbit, It’s the Only Way to be Sure

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Reed O’Connor’s ruling that Congress accidentally repealed the Affordable Care Act is exactly as bad as you’d expect:

A late Friday evening in mid-December — with the midterm elections safely in the rear-view mirror — is not when a public official releases something important that they want to receive a lot of public scrutiny. So it is almost certainly not a coincidence that Texas U.S. District Court Judge Reed O’Connor chose exactly such a moment to release his opinion in Texas v. U.S., holding that the Affordable Care Act was unconstitutional and should be struck down in its entirety.

Should O’Connor’s partisan opinion survive the appellate process, it would not only be a catastrophe for tens of millions of Americans but evidence that Republican courts simply will not allow future Democratic Congresses to govern.

But, on the legal merits, O’Connor’s opinion would need a great deal of work to rise to the level of being shoddy. The basis of his argument is the recent decision by the Republican Congress to remove the tax penalty for people who don’t carry health insurance (the so-called “individual mandate”). O’Connor argues that, because the mandate no longer carries a tax penalty, it is unconstitutional, based on the idea that, when Chief Justice John Roberts upheld most of the Affordable Care Act in the 2012 case NFIB v. Sebelius, the mandate was upheld as a valid exercise of the federal taxing power.

And he then argues that the mandate cannot be severed from the rest of the ACA, so that the entire statute — including the Medicaid expansion, which the mandate doesn’t affect at all — is unconstitutional.

If you think that this doesn’t make any sense, you’re right. First of all, as amended by Congress, there is no longer any “mandate” to purchase health insurance — consumers have the choice to carry insurance or pay… nothing. And the argument that, if the non-actually-existent “mandate” is unconstitutional, the entire bill must fall is even worse. According to O’Connor, Congress “intended” to preserve the original mandate because “knew that provision is essential to the ACA.”

As Nicholas Bagley of the University of Michigan Law School observes, “[o]n 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.”

A legal opinion premised on the idea that Congress could not possibly have intended to do what it literally did seems unlikely to stand up. And indeed, liberal and many conservative legal experts have assailed the ruling.

At least if Ginsburg and Breyer are able to stay on the Court, it is very unlikely that it will hold up. And while upholding it would be bad politically for Republicans in the short-term, don’t buy heighten-the-contradictions arguments that it would actually be OK because it would quickly lead to single payer. Even in the most optimistic Senate scenario in 2020, the odds that there are 50 votes to both eliminate the filibuster and nationalize the American health insurance industry are roughly the same as this year’s Super Bowl being between the Jets and Cardinals. Redundant evidence that Republicans don’t actually support the goals of the ACA doesn’t actually change the politics.

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