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Activist judge strikes down Obamacare in 'embarrassingly bad' ruling

With a decision that even conservatives acknowledge is poorly reasoned, an activist judge in Texas invalidated the entire ACA.

By Lisa Needham - December 17, 2018
Texas District Judge Reed O'Connor

Late last Friday, only one day before the end of its open enrollment period, Judge Reed O’Connor, a conservative federal district court judge in Texas, struck down the entire Affordable Care Act (ACA).

It’s precisely the sort of activist judicial overreach that conservatives decry, but this time they’re quite happy with it. Trump tweeted praise for the ruling, asserting that overruling an existing law that protects people with pre-existing conditions somehow will lead to a great law that protects people with pre-existing conditions.

Judge O’Connor is a huge conservative favorite, and it’s no secret as to why the attorneys general that brought this lawsuit wanted him to be the one to rule on it. Back in 2016, O’Connor ruled that the Obama administration couldn’t enforce rules protecting transgender students. And even though the lawsuit was in Texas, the injunction he issued was nationwide. Conservatives have taken to filing their most controversial lawsuits in his jurisdiction, having relative certainty he’ll rule in their favor.

Judge O’Connor certainly came through this time. He issued a sweeping ruling declaring all of Obamacare unconstitutional. O’Connor ruled that the entire law needed to be thrown out because in 2017 Congress repealed the tax penalty that underpinned the individual mandate. In other words, because one provision got knocked out, the whole of the law had to go, even though Congress had a chance to do just that and chose not to do so.

He also waited until after the election to issue this ruling. This meant that many conservatives who campaigned on saying they cared about protecting pre-existing conditions didn’t have to address the fact that conservatives had brought a lawsuit trying to undercut the law.

However, even conservative scholars acknowledge that his ruling has serious flaws. A lawyer from the Competitive Enterprise Institute, which is anti-ACA, said the decision was “embarrassingly bad” because the judge was twisting himself into knots to get to his desired result.

Conservatives howl when judges appointed by Clinton or Obama rule against any conservative laws, calling them activist judges who don’t reflect the will of the people. O’Connor, though, is the one that is a perfect example of an activist judge. He flouted the intent of the law and issued a decision that makes no sense legally.

There’s a genuine chance that this ruling won’t stand. Legal scholars pointed out that the higher courts generally don’t like to overturn laws that have millions of people relying on them, as is the case here. The blue states that intervened in the lawsuit, like California, have the right to appeal the lawsuit, and the law remains in effect during those appeals.

Even though this particular ruling may not result in Obamacare being overturned at this time, it still has the effect of throwing everything into disarray, leading to uncertainty and despair for the millions that rely on the ACA for their health care coverage. And that’s exactly what conservatives want.

Published with permission of The American Independent Foundation.

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