THE U.S. Court of Appeals for the 5th Circuit will consider on Tuesday one of the most outrageous rulings of the past year: the one in which a U.S. district court judge in Texas struck down the entire Affordable Care Act based on widely condemned legal reasoning. The question before the court is whether its appellate judges will taint themselves by associating with preposterous arguments.
The Trump administration and the other Affordable Care Act challengers claim a key piece of the law is suddenly unconstitutional and, as such, the law can no longer work as intended. Obamacare, the argument goes, is an intricately designed system. Lawmakers at the time of its passage believed that the law’s individual-mandate payment, a charge on those who went without health-care coverage, was a key piece of that system, compelling enough healthy people to buy into the insurance pool to keep its finances stable. Republicans zeroed out the payment in their 2017 tax-cut law, which, the challengers argue for complex but unpersuasive reasons, rendered the mandate unconstitutional. And, without the mandate, the system cannot work as its drafters anticipated, so the whole law must go.
Yet Congress made a different call when it zeroed out the mandate payment in 2017, a move that had the intent and effect of freeing Americans from government-imposed pressure to buy health insurance, and left the rest of the Obamacare system in place. For the 5th Circuit to rule that Obamacare could not function as designed without the mandate — despite the fact that congressional intentions, as of 2017, were to have it function without the mandate — would require the appellate judges to replace their policy judgment for that of the policymakers in Congress, in effect to usurp the legislative function.
Moreover, eliminating the mandate would have little bearing on many parts of the law, such as its expansion of Medicaid. Yet the Trump administration argues that the court must strike these down, along with the elements more directly related. This makes even less sense. The Medicaid system is stable with or without the mandate — or, indeed, any of the Obamacare reforms to the individual insurance market. Striking Obamacare’s expansion of the program would be breathtaking judicial overreach that smacked of cynical partisanship.
The only other reason courts could consider such bold moves would be to prevent the law from chaotically disintegrating, in the process betraying its purpose — to expand health-care coverage. Yet the Urban Institute, a nonpartisan think tank, found last month that it would be extremely chaotic to strike Obamacare from the books. The institute’s experts reckon that 20 million more Americans would go without health-care coverage, a 65 percent boost in the number of uninsured nonelderly adults, and that the pain would be concentrated on low-income people.
A district court judge in Texas — or, for that matter, the members of the 5th Circuit — might not like the Affordable Care Act. But that does not matter. Congress passed the law, and the Supreme Court upheld it. Congress subsequently changed its mind about one of the law’s provisions but decided that the rest could stay as-is. The only thing that is remarkable about this picture is that a judge anywhere would construe that policy shift as a reason to kill the law.