Bombshell ObamaCare Ruling Hinges on a Key Principle

And some think Texas judge Reed O'Connor overreached on 'severability'
By John Johnson,  Newser Staff
Posted Dec 17, 2018 9:45 AM CST
Bombshell ObamaCare Ruling Hinges on a Key Principle
An ObamaCare sign is displayed on the storefront of an insurance agency in Hialeah, Fla.   (AP Photo/Alan Diaz, File)

A Texas judge delivered a bombshell ruling on ObamaCare Friday night, declaring that the Affordable Care Act is unconstitutional. US District Court Judge Reed O'Connor ruled that the individual mandate—the penalty those who forgo insurance must pay—is unconstitutional. And because the individual mandate is so integral to the ACA, the entire ACA is unconstitutional as well, he declared. All of which has lawmakers in both parties, as well as millions of Americans who get their coverage from the ACA, wondering, "Now what?" Here's what we know, including a debate over the legal principle of "severability":

  • What's next: In terms of the immediate future, nothing changes, reports USA Today. Though much uncertainty is now in the mix, the ACA remains in place while this plays out in the courts—perhaps even at the Supreme Court, for the third time—and the process could take months, if not years. Those insured under the ACA, including those who just enrolled, remain covered.
  • The stakes: Here's how the Washington Post puts it: "The opinion, if upheld on appeal, would upend the health insurance industry, the way doctors and hospitals function, and the ability of millions of Americans to access treatments they need to combat serious diseases."
  • Core provisions: As the AP notes, key provisions of the ACA have become popular with Americans, including its protections for pre-existing conditions, expanded Medicaid for lower-income Americans, and the ability of parents to keep their kids covered through age 26. All of which makes the politics tricky for the GOP; the AP says the decision "has landed like a stink bomb among Republicans."

  • Severability: Law professors Jonathan Adler and Abbe Gluck argue in a New York Times op-ed that the ruling "makes a mockery of the rule of law," specifically in regard to a legal principle known as "severability." Last year, Congress effectively killed the individual mandate but, crucially, left the rest of the ACA in place. O'Connor just went against Congress' own move and equated the individual mandate with the entire ACA. Courts can't do that, write the law professors. Severability "is not a liberal principle or a conservative principle," they write. "It is an uncontroversial rule that every Supreme Court justice in modern history has applied." They think it will ultimately doom the ruling.
  • Criticism from the right: The editorial page of the Wall Street Journal hates the ruling, even though "no one opposes ObamaCare more than we do." The editors think O'Connor overreached—they also criticize him on the "severability" issue noted above—and say it could backfire on the GOP: "This is what happens when conservatives fall into the liberal trap of thinking they can use the courts to achieve policy goals that need to be won in Congress."
  • Praise from Trump: "As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster!" he wrote after the ruling. "Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions." On Monday, he continued the theme: "The DEDUCTIBLE which comes with ObamaCare is so high that it is practically not even useable!" he wrote. "Hurts families badly. We have a chance, working with the Democrats, to deliver great HealthCare! A confirming Supreme Court Decision will lead to GREAT HealthCare results for Americans!"
  • The judge: O'Connor is a favorite among conservatives, and he's no stranger to controversial rulings, reports the Fort Worth Star-Telegram. Appointed by George W. Bush in 2007, O'Connor once blocked an Obama administration order allowing transgender students to use the bathroom of their choice. He also has previously made rulings against other key provisions of the ACA.
(More ObamaCare stories.)

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