Legal experts rip judge’s rationale for declaring Obamacare law invalid

O’Connor was appointed by President George W. Bush

https://www.washingtonpost.com/world/national-security/legal-experts-rip-judges-rationale-for-declaring-obamacare-law-invalid/2018/12/15/9cab3bb8-0088-11e9-83c0-b06139e540e5_story.html?noredirect=on&utm_term=.cce4ba438993

By Devlin Barrett
December 15 at 3:39 PM

A federal judge’s ruling declaring the entire Affordable Care Act invalid came under harsh attack Saturday from legal analysts who predicted higher courts will reject the rationale as a tortured effort to rewrite not just the law but congressional history.

The ruling in Texas came on the eve of Saturday’s deadline for Americans to sign up for coverage in the federal insurance exchange created by the ACA, more commonly called Obamacare. The judge did not issue any injunction in the case, meaning that in the short term, nothing will change in health-care services or insurance while the courts consider the issue.

The 55-page ruling late Friday from U.S. District Judge Reed O’Connor found the law invalid on the basis of the political and legal history of a few key provisions. O’Connor decided that once Congress repealed the tax penalty that enforced a mandate that most Americans get health insurance, the whole law became invalid.

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“It’s absolutely ludicrous to hold that we do not know whether the 2017 Congress would have wanted the rest of the ACA to exist without an enforceable mandate, because the 2017 Congress did exactly that when it zeroed out the mandate and left the rest of the ACA standing,” Gluck said. “He effectively repealed the entire Affordable Care Act when the 2017 Congress decided not to do so.”

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The Justice Department, which had been defending the law in court for years, announced in June that it would no longer argue for the mandate, and, as a result, the Trump administration said, a separate requirement that insurance companies cannot reject people who have preexisting conditions was also invalid.

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Ted Frank, a lawyer at the Competitive Enterprise Institute who is critical of the ACA, called the decision “embarrassingly bad” because “you’re twisting yourself into knots” to reach a particular conclusion.

Over the past two years, Frank said, he and other conservative lawyers have complained when district court judges did similar intellectual gymnastics to attack Trump administration initiatives. “It’s not appropriate in the other direction, either,” he said.

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