The GOP has weaponized the courts in undermining our democratic institutions


20 GOP attorneys general hand-picked a conservative activist judge known for his political activism from the bench to conspire to overturn the Affordable Care Act. One can fairly say that the process was “rigged” to produce the desired result. Judge Reed O’Connor should be impeached, and the 20 GOP attorneys general held to account for their unethical professional misconduct.

The New York Times reports, In Weaponized Courts, Judge Who Halted Affordable Care Act Is a Conservative Favorite:

In the 11 years Judge Reed O’Connor has been on the federal bench, he has become a favorite of Republican leaders in Texas, reliably tossing out Democratic policies they have challenged.

The state’s Republican attorney general appears to strategically file key lawsuits in Judge O’Connor’s jurisdiction, the Northern District of Texas, so that he will hear them. And on Friday, the judge handed Republicans another victory by striking down the Affordable Care Act, the signature health law of the Obama era.

Judge O’Connor, who was appointed by former President George W. Bush, has been at the center of some of the most contentious and partisan cases involving federal power and states’ rights, and has sided with conservative leaders in previous challenges to the health law and against efforts to expand transgender rights.

No one questions his expertise on the law. But his rulings illustrate the ways in which the federal district courts have become politically weaponized, as Republicans and Democrats alike try to handpick judges they see as ideologically friendly to their cases.

Nicholas Bagley, professor of law at the University of Michigan Law School, writes The latest ACA ruling is raw judicial activism and impossible to defend:

Late Friday night, a district court in Texas declared the entire Affordable Care Act unconstitutional — lock, stock and barrel. That includes not only the individual mandate and the protections for people with preexisting conditions, but also the entire Medicaid expansion as well as a host of other ACA rules without any connection at all to health insurance.

The logic of the ruling is as difficult to follow as it is to defend, and it sets the stage for yet another round of high-stakes constitutional litigation over the future of health care in the United States.

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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.

But O’Connor didn’t pause over standing. Instead, he turned to the merits and held that the penalty-free mandate is unconstitutional. Why? Back in 2012, a conservative majority on the court ruled that Congress lacked the power to adopt the individual mandate — the obligation to purchase insurance or pay a tax penalty — under its authority to regulate interstate commerce. But a different majority, consisting of the liberal justices plus Chief Justice John G. Roberts Jr., held that the individual mandate could be sustained as an exercise of Congress’s taxing power.

Repeal of the mandate penalty, however, means the government is no longer using its taxing power. For O’Connor, then, the penalty-free mandate that remains on the books must be unconstitutional, even though it’s not enforceable. (The court doesn’t even address precedent from the U.S. Court of Appeals for the 5th Circuit that “an unused power to tax” doesn’t make an exercise of the taxing power unconstitutional.)

* * *

You might have thought that the right remedy would be to invalidate the penalty-free mandate. Doing so would align with Congress’s evident view that an ACA without an individual mandate was preferable to an ACA with it. That’s what I argued in an amicus brief with a bipartisan group of law professors.

Instead, the court held that the entire ACA was “inseverable” from the purportedly unconstitutional mandate. To reach that conclusion, the judge leaned heavily on Congress’s findings from 2010, where it said that the individual mandate was “essential” to the law.

But the mandate that the 2010 Congress said was essential had a penalty attached to it. The finding is irrelevant to a mandate that lacks any such penalty [after repeal in 2017].

In any event, it doesn’t matter what Congress meant to do in 2010. It matters what Congress meant to do in 2017, when a different Congress made a different call about whether the mandate was essential. We know what Congress wanted to do in 2017: repeal the mandate and leave the rest of the act intact. Its judgment could not have been plainer.

That’s not how O’Connor sees it. In perhaps the most remarkable passage in a remarkable opinion, he wrote that the 2017 Congress “intended to preserve the Individual Mandate because the 2017 Congress, like the 2010 Congress, knew that provision is essential to the ACA.”

Your jaw should be on the floor. On no account did Congress in 2017 “intend to preserve” the individual mandate. It meant to get rid of the loathed mandate — and it did, by eliminating the penalty that gave it force and effect.

In his contempt for the ACA, O’Connor blinded himself to all this. Instead, he decided that what Congress “really” wanted was to invalidate the entire ACA.

What happens next? California has already said it will appeal, and the decision won’t take effect while that appeal is pending. So nothing changes for the time being. And nothing should change.

Other legal experts agree this partisan political opinion should not survive on appeal. Legal experts rip judge’s rationale for declaring Obamacare law invalid:

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 political and legal fights surrounding the ACA tend to focus on the mandate and the requirement that insurance companies provide coverage to people with preexisting medical conditions. The 2,000-page law, however, covers a vast array of other health-care issues, touching almost every part of the health-care industry in the United States.

For that reason, if the ruling were to take effect, it could create major disruptions across the U.S. health-care system — affecting which drugs patients can buy, preventive services for older Americans, the expansion of Medicaid in most states and the structure of the Indian Health Service.

“There’s really no American that’s not affected by this law,” said Yale law professor Abbe Gluck, who filed an amicus brief with other lawyers in the Texas case.

The judge’s ruling, she said, flouts settled legal doctrine and places key acts of Congress in reverse order.

Abbie Gluck expounds on this in an op-ed with Jonathan Adler, What the Lawless Obamacare Ruling Means:

In a shocking legal ruling, a federal judge in Texas wiped Obamacare off the books Friday night. The decision, issued after business hours on the eve of the deadline to enroll for health insurance for 2019, focuses on the so-called individual mandate. Yet it purports to declare the entire law unconstitutional — everything from the Medicaid expansion, the ban on pre-existing conditions, Medicare and pharmaceutical reforms to much, much more.

A ruling this consequential had better be based on rock-solid legal argument. Instead, the opinion by Judge Reed O’Connor is an exercise of raw judicial power, unmoored from the relevant doctrines concerning when judges may strike down a whole law because of a single alleged legal infirmity buried within.

We were on opposing sides of the 2012 and 2015 Supreme Court challenges to the Affordable Care Act, and we have different views of the merits of the act itself. But as experts in the field of statutory law, we agree that this decision makes a mockery of the rule of law and basic principles of democracy — especially Congress’s constitutional power to amend its own statutes and do so in accord with its own internal rules.

* * *

In this case, Texas and 19 other states argue that with zero penalty, the mandate lacks a constitutional basis because it will no longer be enforced like a tax. If that were all there was, the case would have little consequence because starting in 2019, the mandate is unenforceable.

But audaciously, the states argued — and Judge O’Connor agreed — that the rest of Obamacare must fall, too. They claim that the mandate is so central to the A.C.A. that nothing else in it can operate without it.

That’s not how the relevant law works. An established legal principle called “severability” is triggered when a court must consider what happens to a statute when one part of it is struck down. The principle presumes that, out of respect for the separation of powers, courts will leave the rest of the statute standing unless Congress makes clear it did not intend for the law to exist without the challenged provision. This is not a liberal principle or a conservative principle. It is an uncontroversial rule that every Supreme Court justice in modern history has applied.

Sometimes severability cases are difficult because it is hard to guess how much importance Congress attributed to one provision, especially in a lengthy law like the Affordable Care Act. But this is an easy case: It was Congress, not a court, that eliminated the mandate penalty and left the rest of the statute in place. How can a court conclude that Congress never intended the rest of the statute to exist without an operational mandate, when it was the 2017 Congress itself that decided it was fine to eliminate the penalty and leave the rest of the law intact? … [T]he 2010 Congress’s intention is not relevant to this case — the 2010 law is no longer what is at issue.

Congress is allowed to amend its own law, and the Constitution does not permit any court to undermine that power. Still, Judge O’Connor wrote that we cannot divine the intent of the 2017 Congress because Congress didn’t have the votes to repeal the entire law but wished it could. That’s ridiculous. Congressional intent is all about the votes. One would not say Congress wished it could repeal the Civil Rights Act if only a minority of Congress supported such a move. It is conservative judicial doctrine 101, as repeatedly emphasized by Justice Antonin Scalia, that the best way to understand congressional intent is to look at the text Congress was able to get through the legislative process.

Instead, Judge O’Connor goes down a rabbit hole, hypothesizing whether the 2010 Congress would have enacted the entire law without the mandate and whether the law can function without it. What findings Congress made in 2010 are irrelevant to the interpretation of this later legislative act. Regardless, Congress’s own act of 2017 makes clear Congress thinks the law works without an operational mandate. To believe otherwise is to assume Congress enacts unworkable laws and that is not what courts are allowed to presume. Judge O’Connor’s claim to the contrary is the equivalent of saying that your 2017 tax cut isn’t valid because the 2010 Congress also enacted a tax bill, and wouldn’t have included your tax cut there.

What happens next? The health law is likely to continue in place while the case moves to the higher courts. California, the leader of a group of states that stepped in to defend the law because the Justice Department refused to do so, will almost certainly go to the Fifth Circuit — the federal appellate court that presides over Texas — to have the effects of the decision paused and the case reviewed. The House of Representatives will also likely join the lawsuit once the Democrats take control.

If the Fifth Circuit reverses Judge O’Connor, we think it unlikely the Supreme Court will take the case. If the Fifth Circuit upholds the ruling, we are skeptical a majority of the court would sustain this weak analysis.

Other legal experts agree with this analysis. Health Law Could Be Hard to Knock Down Despite Judge’s Ruling

Lawyers on both sides of previous A.C.A. battles said the reasoning behind this one was badly flawed, notably in its insistence that the entire 2010 law must fall because one of its provisions may have been rendered invalid by the 2017 tax overhaul legislation. Had Congress meant to take such radical action, they said, it would have said so at the time.

Legal experts also noted that the Supreme Court, where most people believe the case is headed, historically has been reluctant to strike down federal laws, particularly those that have become ingrained in the lives of millions of citizens.

For now, the ruling is unlikely to affect the more than 23 million people who get health coverage through the insurance marketplaces set up by the law and the expansion of Medicaid in 36 states. The Trump administration immediately said — despite the president’s gleeful tweets hailing the decision — that it would continue to enforce the law until the appeals process plays out, which could take more than a year. That will ensure that the American health care system, which has been operating under the law for more than five years, will not be thrown into immediate chaos.

So the immediate issue Americans must confront is how the GOP has weaponized the courts with the appointment of conservative activist judges who impose their ideological political views rather than apply the rule of law in an unbiased and fair manner to do justice. The GOP has corrupted the courts as they have undermined every other American institution of democracy.

This is the issue Paul Krugman addresses in his opinion today. Conservatism’s Monstrous Endgame (excerpts):

[Judge] O’Connor’s abuse of power may be unusually crude, but that sort of behavior is becoming increasingly common. And it’s not just health care, nor is it just the courts. What Nancy Pelosi called the “monstrous endgame” of the Republican assault on health care is just the leading edge of an attack on multiple fronts, as the G.O.P. tries to overturn the will of the voters and undermine democracy in general.

For while we may congratulate ourselves on the strength of our political institutions, in the end institutions consist of people and fulfill their roles only as long as the people in them respect their intended purpose. Rule of law depends not just on what is written down, but also on the behavior of those who interpret and enforce that rule.

* * *

Friday was another sad day for the rule of law — the deployment of judicial opinions employing questionable legal arguments to support a political agenda. This is not how judges are supposed to act. Reasonable people may disagree on whether the health law represented the best way to reform America’s health care system, and reasonable people may disagree on whether it should be replaced with a different approach. Yet reasonable people should understand such choices are left to Congress, not to the courts.

If these people don’t regard themselves as servants of the law first, partisans second, if they won’t subordinate their political goals to their duty to preserve the system, laws become meaningless and only power matters.

And what we’re seeing in America — what we’ve actually been seeing for years, although much of the news media and political establishment has refused to acknowledge it — is an invasion of our institutions by right-wing partisans whose loyalty is to party, not principle. This invasion is corroding the Republic, and the corrosion is already very far advanced.

* * *

As David Frum, the author of “Trumpocracy,” warned a year ago: “If conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy.” That’s happening as we speak.

So Pelosi was right about Reed O’Connor’s ruling being a symptom of a “monstrous endgame,” but the game in question isn’t just about perpetuating the assault on health care, it’s about assaulting democracy in general. And the current state of the endgame is probably just the beginning; the worst, I fear, is yet to come.

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  1. Ducey chose McSally for the empty Senate seat, because of course he did. The voters said no, and he just flipped off the citizens of this state. Whatever. We won’t forget.

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