On Friday, U.S. District Court Judge Reed O’Connor overturned the Affordable Care Act — or at least, he tried to. O’Connor’s ruling in Texas v. Azar, filed by 20 conservative state attorneys general, found the entire ACA violated the U.S. Constitution. As Jeffrey Young explained for the Huffington Post, the Republican officials had “contended that the entire law should be stricken because Congress earlier this year repealed the fines known as ‘shared responsibility payments’ that people without health coverage had to pay under the Affordable Care Act’s individual mandate.” O’Connor’s opinion affirmed that argument. While the ruling generated a lot of coverage, it does not suspend the ACA. It will be appealed, and likely overturned.
O’Connor’s reasoning is so dubious, in fact, that even conservatives are divided on its merits. Donald Trump welcomed the verdict with an enthusiastic and nearly incomprehensible tweet, as is his wont.
But other conservatives seemed less pleased. Considered together, their arguments read superficially like criticisms of partisan judicial overreach, but they’re haunted by deeper questions they cannot or will not answer. Conservatives have yet to propose an alternative to the ACA that doesn’t inspire public outrage, and the absence looks even more pronounced in the wake of O’Connor’s ruling. In several high-profile columns written in response to Friday’s news, conservatives fixated on issues like rule of law and largely danced around issues of policy.
In a column for the Washington Examiner, Philip Klein reiterates his hatred for the ACA — and admits, oddly, to donning a Halloween costume that “depicted [Chief Justice] John Roberts turning into a chicken” — before criticizing O’Connor’s ruling. Klein isn’t convinced that states have the standing to sue over the ACA, or that Congress rendered the law unconstitutional by eliminating penalties for failing to buy insurance. He questions, too, O’Connor’s assertion that the individual mandate can’t be severed from the rest of the law. His conclusion defends his definition of the rule of law, not the substance of the ACA:
“More than anybody, I can appreciate the desire to get rid of Obamacare. But the Supreme Court has already made its decision, and thus lower courts are bound by the decision. As I have been arguing for years, including in a book on the subject, the way to go about things is for Republicans to unite around a sensible free-market alternative and repeal Obamacare legislatively. What’s happening here is an effort to short-circuit the normal process and implement policy preferences through judicial activism.”
The editorial board of The Wall Street Journal also objected to O’Connor’s ruling in an op-ed published on Sunday. The ruling, they wrote, “is likely to be overturned on appeal and may boomerang politically on Republicans.” They continued:
“As for the politics, Democrats claim to be alarmed by the ruling but the truth is they’re elated. They want to use it to further pound Republicans for denying health insurance for pre-existing conditions if the law is overturned. Democrats campaigned across the country against Mr. Paxton’s lawsuit to gain House and Senate seats in November, and they will now press votes in Congress so they can compound the gains in 2020.
President Trump hailed the ruling in a tweet, but he has never understood the Affordable Care Act. His Administration has done good work revising regulations to reduce health-care costs and increase access, but the risk is that the lawsuit will cause Republicans in Congress to panic politically and strike a deal with Democrats that reinforces ObamaCare. 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.”
And the National Review, never a fan of the Affordable Care Act, also condemned O’Connor’s ruling:
“A new district-court decision striking down the law appears to give Congress an opportunity to start over. Yet we cannot applaud Judge Reed O’Connor’s decision. Indeed, we deplore it. It will not lead to the replacement of Obamacare, as much as we desire that outcome. It will instead give Republicans another opportunity to dodge their responsibility to advance legislation toward that end.
It will not lead to the replacement of Obamacare because it is very likely to be overturned on appeal; and it is very likely to be overturned on appeal because it deserves to be.”
None of these arguments are very good! Klein seems perturbed mostly that O’Connor has contradicted an earlier Supreme Court ruling; in doing so, the judge violated “the rule of law.” The same line of argument wouldn’t get us far against Dred Scott and Korematsu, rulings that both placed an imprimatur on vicious, institutionalized racial discrimination. “Millions of people now rely on ObamaCare’s subsidies and rules, which argues against judges repealing the law by fiat,” admits The Wall Street Journal, but the paper seems concerned principally with the electoral chances of its preferred political party. The paper also praises Trump’s regulatory fixes for reducing health-care costs and increasing “access,” but this is a specious reading of Trump’s policies. Trump has greatly increased the availability of short-term health insurance plans that don’t cover most preventative or even catastrophic care services; this is not the same thing as increasing “access” to health care. The federal government’s health-care costs have actually increased during Trump’s presidency, a trend Reuters has attributed partly to an aging population, which is outside Trump’s control, and rising drug prices, which are within the president’s power to influence.
The National Review, finally, is correct to criticize O’Connor’s legal reasoning and to worry that Republicans will once again dodge an opportunity to replace their legislative nemesis — to “come up with workable alternatives, or to accommodate the interests of people who rely on the law while pleasing those who oppose it,” as the magazine’s editorial page put it. But the GOP’s inability to replace the ACA isn’t due simply to incompetence. Republicans did try to replace the ACA. Their proposals failed to pass because they were cruel. NR commits a dodge of its own, avoiding the bigger question at hand. How do we define workable? Is it even possible to design a conservative health-care law that protects people with pre-existing conditions and lowers health-care costs while avoiding the dreaded specter of government interference with the free market? The answer might just be no — that for all the angst O’Connor’s verdict kicked up, conservatives still don’t know how to answer the challenge raised by the ACA.