Texas Judge on ACA creates a hornet's nest

Judge O'Connor

It could have been called a stealth attack: a Texas judge ruling that the Affordable Care Act, colloquially  known as “Obamacare”, was unconstitutional, just as the deadline approached for the 2019 sign up, or renewal; the move prompted a hue and cry, not only from Democrats, but also from Republican lawmakers, fearing another huge effort, on their part, to replace it, and an even larger blow back from their constituents.

In a move that was obviously deliberate --- a psychological weapon against the much maligned, and much misunderstood 2013 law, the legacy of America’s first black president, Barack Obama, and the fear is that the United States health market will be thrown into chaos, should it be supported.

Former U.S. House majority leader, and currently minority House leader, Nancy Pelosi, who was a pivotal figure in the ACA’s passage, said, in part, from a statement, released by her office:

  

“Tonight’s district court ruling exposes the monstrous endgame of Republicans’ all-out assault on people with pre-existing conditions and Americans’ access to affordable health care. The GOP Congress tried and failed to destroy the Affordable Care Act and protections for pre-existing conditions. Then, in the midterm election, the American people delivered a record-breaking margin of almost 10 million votes against House Republicans’ vile assault on health care.  Now, the district court ruling in Republicans’ lawsuit seeks to subvert the will of the American people and sow chaos in the final day of HealthCare.gov open enrollment.”

  

Many have questioned the reasoning of U.S. District Judge Reed O'Connor’s which is based on the removal of the individual mandate, which he sees as a total invalidation of the law, and its constitutionality, and one that many believe he is in serious judicial error.

Alison Kodjak of NPR reported that "The lawsuit had to do with whether when Congress last year repealed or eliminated the penalty for not having insurance — it was a tax penalty for people who didn't have insurance — whether that meant the rest of the law didn't apply anymore. The court case argued that all of the pieces of the law were dependent upon each other, so by eliminating the penalty the rest of the law fell apart. The judge agreed with that opinion."

The New York Times commented, in their coverage, that, “The Justice Department’s response to the case was highly unusual: though it disagreed with the plaintiffs that the entire law should be struck down, it declined this year to defend not just the individual mandate, but the law’s provisions that protect people with pre-existing conditions. That prompted a coalition of 16 states and the District of Columbia, led by California, to intervene and defend the law.”

Speaking for the Trump Administration, White House spokesperson, Sarah Sanders, was exultant in her praise, noting that "Obamacare has been struck down by a highly respected judge. The judge's decision vindicates President Trump's position that Obamacare is unconstitutional. Once again, the President calls on Congress to replace Obamacare and act to protect people with preexisting conditions and provide Americans with quality affordable healthcare. We expect this ruling will be appealed to the Supreme Court. Pending the appeal process, the law remains in place.”

Not to be outdone, President Donald Trump tweeted, in an almost alleluia-like manner: "As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions."

"Congress amended one provision of a 2,000 page law and did not touch the rest of the law so it is implausible to believe that Congress intended the rest of the law not to exist," Abbe Gluck, a health-law expert at Yale Law School, said following the ruling.

Going even further, “In a Washington Post op-ed, Nicholas Bagley, a law professor with a focus on health policy at the University of Michigan, failed to make sense of O'Connor's legal case. He determined that the "logic of the ruling is as difficult to follow as it is to defend."

"This case is different; it's an exercise of raw judicial activism," Bagley said. "Don't for a moment mistake it for the rule of law."

Observers have noted that the tables have turned now that the GOP is in power, even now with only the Senate, and the White House; and that decades of accusations of “liberal activist judges”, and “ruling from the bench, and not the law” are okay, as long as they do it.

Lest anyone think that the endgame belongs only to Democratic defenders, even those that on the opposite side of the aisle are calling, it, pun intended, a misjudgment.

“And even many Obamacare critics have spoken out against the ruling. Conservative lawyers that previously criticized the law took issue with the breadth of the ruling. Philip Klein, the executive editor of the conservative-leaning Washington Examiner and author of a book on "overcoming" Obamacare, called it an "assault on the rule of law” in an interview with Business Insider.

Based on a model from Mitt Romney as governor of Massachusetts, Obama, in a neat legislative trick of using a conservative hero to craft national law, the legacy piece faced several challenges in its crafting, but received no help from the Republicans who, in the words of Mitch McConnell, wanted him to be a one-term president.

Several attempts were made to replace the ACA and all failed; and, now O’Connor’s ruling is the latest effort to chip away at a law that helped over 12 million Americans get health care, and especially preventive care from the hills of West Virginia, to America’s urban core cities.

This happened despite talks of death councils, imprisonment and other ill-informed rumors, but it also “expanded Medicaid, which has allowed more than 10 million people to get coverage in states that chose to expand the program. The law also protects people with pre-existing conditions and allows people up to age 26 to be covered under their parents' insurance . . . The ACA also secured more money for Native American health care and made significant changes to allow for generic drugs and to provide funding for Medicare.”

In 2017 Consumer Reports also said that, “As legislators and the executive branch renew their efforts to repeal and replace the Affordable Care Act this week, they might want to keep in mind a little-known financial consequence of the ACA: Since its adoption, far fewer Americans have taken the extreme step of filing for personal bankruptcy.

Filings have dropped about 50 percent, from 1,536,799 in 2010 to 770,846 in 2016 (see chart, below). Those years also represent the time frame when the ACA took effect. Although courts never ask people to declare why they’re filing, many bankruptcy and legal experts agree that medical bills had been a leading cause of personal bankruptcy before public healthcare coverage expanded under the ACA. Unlike other causes of debt, medical bills are often unexpected, involuntary, and large.”

“It’s absolutely remarkable,” says Jim Molleur, a Maine-based bankruptcy attorney with 20 years of experience. “We’re not getting people with big medical bills, chronically sick people who would hit those lifetime caps or be denied because of pre-existing conditions. They seemed to disappear almost overnight once ACA kicked in.”

For those that are worried, take note: “The judge issued what is known as a declaratory judgment — which, unlike an injunction, allows the law to continue unabated until the case is taken up by another court. Democratic states have pledged to appeal the ruling, so O'Connor's decision will likely not be the last word. Meanwhile, people who get access to healthcare through Obamacare's marketplaces or Medicaid expansion will continue to have coverage.”

There is always the law of unintended consequences, and the old adage to be careful of what you wish for still holds, and for those, in the GOP, ready to pop the champagne corks as they damn Obama, that celebration might be only possible if they “think that plenty of unnecessary deaths, suffering, and financial ruin are OK. And Republicans, who suffered huge losses in the 2018 midterms in part because of their extremely unpopular attempts to repeal the ACA, would own this outcome. Plus, it’s essentially impossible to imagine a significant fix that would be acceptable to both a Republican-controlled Senate and a Democratic-controlled House.”

Many legal experts expect that the law will be preserved by the Supreme Court, certain that that is the eventual path, but also note that many of those supportive justices present in 2013, are still on the bench, but stress that “if Judge O’Connor’s decision ultimately stands, about 17 million Americans will lose their health insurance, according to the Urban Institute, a left-leaning think tank, but also the millions more who gained subsidized private insurance through the law’s online marketplaces, and no cap on out-of-pocket costs.”