Nicholas Bagley blasts "raw judicial activism."
U.S. District Judge Reed O’Connor, a conservative Texas judge appointed by President George W. Bush, causes a stir by ruling that the entire Affordable Care Act is unconstitutional. The judge decided Friday that Congress’ removal of the individual-mandate penalty for failing to have health insurance makes the ACA worthless.
If upheld, the decision could cause potential chaos in the health care industry and pave the way for insurance companies to deny coverage with people with pre-existing conditions. Everyone expects an appeal.
In a Washington Post commentary, University of Michigan Law Professor Nicholas Bagley writes:
It’s an exercise of raw judicial activism. Don’t for a moment mistake it for the rule of law. . . .
To understand the court’s decision, you have to see the mandate as consisting of two discrete parts. There’s an instruction to buy insurance, and there’s a penalty associated with failing to do so.
As part of their 2017 tax reform package, congressional Republicans amended the ACA to eliminate the tax penalty. Because they couldn’t summon a filibuster-proof majority necessary to make substantive amendments, they zeroed the penalty out without also eliminating the naked instruction to buy insurance. And they trumpeted to anyone who would listen that they repealed the individual mandate — which, for all practical purposes, is precisely what they did.
But that’s not how U.S. District Judge Reed O’Connor saw it. In his view, the penalty-free mandate still amounted to a coercive exercise of government power. That meant that two individuals who’d been conscripted by red states as plaintiffs had standing to sue.
To put it bluntly, that makes zero sense. The judge asserted — without any support — that the penalty-free mandate “requires [the plaintiffs] to purchase and maintain certain health-insurance coverage.” But that’s not right. An unenforceable instruction to purchase insurance is not coercive in the slightest.
