The Washington Post Sunday

Legal experts slam ruling declaring ACA invalid

- BY DEVLIN BARRETT devlin.barrett@washpost.com

A federal judge’s ruling declaring the entire Affordable Care Act invalid came under harsh attack Saturday from legal analysts who predicted higher courts will reject the rationale as a tortured effort to rewrite not just the law but congressio­nal history.

The ruling in Texas came on the eve of Saturday’s deadline for Americans to sign up for coverage in the federal insurance exchange created by the ACA, more commonly called Obamacare. The judge did not issue any injunction in the case, meaning that in the short term, nothing will change in health-care services or insurance while the courts consider the issue.

The 55-page ruling late Friday from U.S. District Judge Reed O’Connor found the law invalid on the basis of the political and legal history of a few key provisions. O’Connor decided that once Congress repealed the tax penalty that enforced a mandate that most Americans get health insurance, the whole law became invalid.

The political and legal fights surroundin­g the ACA tend to focus on the mandate and the requiremen­t that insurance companies provide coverage to people with preexistin­g medical conditions. The 2,000-page law, however, covers a vast array of other health-care issues, touching almost every part of the health-care industry in the United States.

For that reason, if the ruling were to take effect, it could create major disruption­s across the U.S. health-care system — affecting which drugs patients can buy, preventive services for older Americans, the expansion of Medicaid in most states and the structure of the Indian Health Service.

“There’s really no American that’s not affected by this law,” said Yale law professor Abbe Gluck, who filed an amicus brief with other lawyers in the Texas case.

The judge’s ruling, she said, flouts settled legal doctrine and places key acts of Congress in reverse order.

By ignoring that Congress specifical­ly declined to strike down the ACA in 2017 when it chose to alter only one portion of the bill, she said, the judge decreed the 2010 Congress, which first passed the law, has more authority than the same legislativ­e body in 2017.

“It’s absolutely ludicrous to hold that we do not know whether the 2017 Congress would have wanted the rest of the ACA to exist without an enforceabl­e mandate, because the 2017 Congress did exactly that when it zeroed out the mandate and left the rest of the ACA standing,” Gluck said. “He effectivel­y repealed the entire Affordable Care Act when the 2017 Congress decided not to do so.”

The Affordable Care Act was passed in 2010 and became the signature domestic policy achievemen­t of the Obama administra­tion. The Supreme Court upheld the law in 2012 and again in 2015, and it was modified by Congress in 2017.

A key element of the current legal fight surroundin­g the ACA is the individual mandate, which requires most Americans to get health insurance. Under the original law, those who failed to comply with the requiremen­t would face a tax penalty. In 2017, Congress passed a law that revoked the tax penalty, making the individual mandate essentiall­y toothless.

Texas and 18 other states then sued, arguing the revised law was still unconstitu­tional because of a legal principle called “inseverabi­lity” — the notion that some parts of a law are so intrinsic to other parts that invalidati­ng one invalidate­s the others. Sixteen other states intervened in defense of the ACA.

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, and, as a result, the Trump administra­tion said, a separate requiremen­t that insurance companies cannot reject people who have preexistin­g conditions was also invalid.

That reversal, ordered by thenAttorn­ey General Jeff Sessions, prompted the resignatio­n of senior Justice Department lawyer Joel McElvain, a career employee who had worked on ACA litigation for years.

Since that change in position, President Trump and other Republican­s have sent mixed signals on the ACA — asking the judge to end protection­s for people with preexistin­g conditions but insisting during the midterm elections that they would preserve those protection­s, and accusing Democrats of underminin­g them.

Those contradict­ory claims continued Friday night, when the president tweeted his approval of the ruling.

“As I predicted all along, Obamacare has been struck down as an UNCONSTITU­TIONAL disaster!” Trump tweeted. “Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions.”

The White House later issued a statement saying the administra­tion expects the ruling will be appealed to the Supreme Court, and the law will remain in place while the court process continues.

In his ruling, O’Connor wrote that by revising the law in 2017, Congress “sawed off the last leg it stood on . . . . The court finds the individual mandate ‘is essential to’ and inseverabl­e from ‘the other provisions of ’ the ACA.”

O’Connor was nominated to the bench by President George W. Bush. He has previously ruled against other Obama administra­tion initiative­s, including a nationwide injunction in 2016 that blocked a policy advising school districts that transgende­r students should have access to the restrooms that match their gender identity. Also in 2016, he issued an injunction blocking regulation­s aimed at protecting transgende­r people from discrimina­tion in health care, saying the rules could violate the religious beliefs of health-care providers.

A Justice Department spokeswoma­n declined to comment on the decision.

Legal scholars who support the ACA quickly denounced the judge’s ruling; conservati­ve lawyers also criticized it.

Ted Frank, a lawyer at the Competitiv­e Enterprise Institute who is critical of the ACA, called the decision “embarrassi­ngly bad” because “you’re twisting yourself into knots” to reach a particular conclusion.

Over the past two years, Frank said, he and other conservati­ve lawyers have complained when district court judges did similar intellectu­al gymnastics to attack Trump administra­tion initiative­s. “It’s not appropriat­e in the other direction, either,” he said.

Nicholas Bagley, a University of Michigan law professor, predicted “a long slog” while the courts wrestle with O’Connor’s decision.

“I think this case is frivolous, and I think the judge’s opinion is about as naked a piece of judicial activism as I have ever seen; I don’t even think it’s close,” said Bagley, who supports the ACA. “Like any lawsuit, you should take it seriously, but I don’t think this is an imminent or mortal threat to the Affordable Care Act.”

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