Health Law Expert: Obamacare Decision Was an ‘Embarrassment’ to the ‘Federal Judiciary as a Whole’

While the national spotlight was fixed on the House of Representatives’ historic vote to impeach President Donald Trump on Wednesday, a federal appeals court handed down its much-anticipated decision finding that the Affordable Care Act’s (ACA) individual mandate is unconstitutional. Instead of providing an analysis as to whether that means the entire ACA is unconstitutional, the Fifth Circuit Court of Appeals sent the case back down to the district court, a decision at least one legal expert regarded as a “partisan stunt” and an “embarrassment” to the “federal judiciary as a whole.”

The case arose after the Tax Cuts and Jobs Act of 2017 reduced the penalty for not having health insurance to zero. Texas, along with several other Republican-led states, filed a lawsuit claiming that a zero-dollar penalty is not a constitutional tax and therefore the entire law is no longer constitutional. (The Supreme Court’s 2012 decision upholding the ACA was based on reasoning that the penalty levied against those without insurance was constitutional under Congress’s taxing power).

While the Supreme Court may take up the case in its current term, it’s more likely the justices will wait for the U.S. District Court to rule on whether the individual mandate can be severed from the rest of the law, meaning the fate of the ACA is one again uncertain for the foreseeable future.

“Neither outcome is good. And it’s all completely unnecessary,” University of Michigan law professor Nicholas Bagley, an expert in health and administrative law, wrote in The Atlantic on Thursday.

“The case is a partisan stunt that’s been roundly condemned by lawyers on both sides of the aisle. It should’ve been laughed out of contention long ago,” he wrote, adding that the decision was “an embarrassment, both to the Republican-appointed judges who put their names to it and to the federal judiciary as a whole.”

Bagley highlighted some of the particularly questionable decisions made in the Fifth Circuit’s opinion. He pointed to some of the court’s “gratuitous partisan asides,” such as the court repeating assertions of ACA opponents that the law was enacted “as part of a fraud on the American people.” He criticized the court’s “casual disregard” of Circuit precedent which previously held that “a tax that can’t be collected is still a tax for constitutional purposes.”

But what Bagley describes as the “core of the case” was the Court’s conclusion that, by zeroing out the mandate penalty, Congress imposed a “coercive command” on the American people.

“That’s balderdash. Eliminating the penalty was Congress’s way of giving people the freedom to drop their health insurance if they wanted to. Congress didn’t mean to force them to do anything,” Bagley wrote, saying that the Court’s “arrogance is breathtaking.”

The “cowardice” Bagley mentioned referred to the Court’s possibly purposeful failure to perform any kind of analysis as to whether Obamacare can survive without the individual mandate – instead choosing to send the case back to the U.S. District Court with instructions to reassess the law with a “careful, granular approach.”

“The Fifth Circuit’s cowardice may be strategic. By refusing to say how much or little of the law has to go, the opinion avoids creating an immediate headache for Republicans going into the 2020 election. It may also reduce the odds that the Supreme Court will review the case right away: The Court doesn’t normally like to hear cases before they’re wrapped up,” Bagley concluded.

[image via Mark Wilson/Getty Images]

Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.

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