The State of American Judiciary in 2020

After bouncing back and forth between a federal district court in Texas and the 5th Circuit Court of Appeals, a lawsuit called Texas v. United States, will be taken up by the US Supreme Court shortly after this November’s election. This is the latest attempt to scuttle the Affordable Care Act (ACA) or Obamacare. Depending on what that court rules, something in excess of 20 million Americans may lose their health insurance.

Early in the lawsuit, Wisconsin played the key role of Texas’ co-leader. That changed following the defeat of Governor Scott Walker and Attorney General Brad Schimel in the 2018 election. Why they believed that taking away voters’ health insurance was good politics remains a mystery.

Both the district and the appeals courts start their rulings with an assertion disclaiming any intention of making policy. They insist they are interested in law, not policy.

For example, District Judge Reed O’Connor prefaces his decision against the ACA with this assertion:

… Article III courts … are not tasked with, nor are they suited to, policymaking.

On December 18, 2019, a three-judge panel of the federal 5th District Court of Appeals led off its decision upholding O’Connor with a similar disclaimer. After listing some of the issues that could be considered, Judge Jennifer Elrod wrote this:

None of these policy issues are before the court. And for good reason–the courts are not institutionally equipped to address them. These issues are far better left to the other two branches of government. The questions before the court are far narrower: questions of law, not of policy.

This disclaimer seems to have become de rigueur among conservative judges. Too often, it precedes a decision that has the hallmarks of being driven by considerations of policy, partisanship, ideology, or personal animosity. That is the case here.

Both O’Connor and Elrod argue that when Congress, in the Tax Cuts Act, set the individual mandate to $0, it made the ACA unconstitutional. This counter-intuitive argument goes this way:

In a previous challenge to the ACA, all five conservative justices, including Chief Justice John Roberts, concluded that reading the mandate as a command to purchase insurance would violate the Commerce Clause of the Constitution. Instead of regulating commerce, it would, in their view, compel individuals to enter commerce by requiring them to buy health insurance.

However, if the mandate were treated as a tax, in Roberts’ view, it would satisfy the constitution since the federal government does have the power to levy taxes. Judge O’Connor and, on appeal, Judge Elrod argued that a zero-dollar tax is no longer a tax and therefor the individual mandate is unconstitutional.

The common-sense response to this is that a mandate with a price tag of zero is no longer a mandate. As Judge Carolyn King, who wrote the panel’s dissent, pointed out:

Any American can choose not to purchase health insurance without legal consequence. Before January 1, 2018, individuals had to choose between complying with the Affordable Care Act’s coverage requirement or making a payment to the IRS. For better or worse, Congress has now set that payment at $0. Without any enforcement mechanism to speak of, questions about the legality of the individual “mandate” are purely academic, and people can purchase insurance—or not—as they please. No more need be said; it has long been settled that the federal courts deal in cases and controversies, not academic curiosities.

Yet, the judges opposed to the ACA insisted that “the undisputed evidence in this case suggests the Individual Mandate fixes an obligation.” They point to statements from the two individual plaintiffs who assert they feel duty-bound to follow the government’s mandates. This is bizarre. The individual plaintiffs, John Nantz and Neill Hurley, appear to suffer from an inability to take ownership of their own decisions and the courts are busy enabling that very unhealthy practice.

Judge O’Connor goes on to assert that, despite all evidence to the contrary, everything in the ACA is tied to the individual mandate. Thus, if the individual mandate is struck down, so should everything else in the law, including the clause allowing young adults to stay on their parents’ insurance, the expansion of Medicaid, and the protection of people with pre-existing conditions, new preventive benefits for Medicare enrollees, and the reduction of the “doughnut hole” for prescription drugs, among many others.

If these benefits were actually dependent on the individual mandate, enrollment in the ACA’s programs should have collapsed with the loss of the mandate. But that didn’t happen. And while the number of people without health insurance has increased since Trump took office, it is hard to quantify the effect of zeroing out the individual mandate versus that of other Trump administration efforts to sabotage the coverage offered by the ACA.

The decisions of the Republican-appointed judges in this case—O’Connor, Elrod, and Kurt Engelhard, the third member of the Appeals Court panel and a Trump appointee—give every indication of starting at their end goal, the repeal of Obamacare, and working forward from there.

The goal of these decisions was to get rid of Obamacare and the Republican-appointed judges clearly supported that goal. One is left with the painful conclusion that these judges systematically lied about their intentions. The problem with these three judges is not they are conservative. It is that they lack integrity.

The case will be argued at the Supreme Court on November 10, 2020, a week after the election. A decision is expected next spring if the court follows its normal practices. With the likely addition of Amy Coney Barrett to the court, it is widely assumed that the odds of the justices invalidating the whole ACA have grown. Or the court could invalidate just the individual mandate, leaving the rest of the ACA to operate as it does today.

The danger here is that an unelected Supreme Court dominated by six conservative justices increasingly injects itself into policy decisions by the elected branches of government, under the pretext that only it understands the Constitution. If a Supreme Court dominated by six conservative justices proceeds to impose their policy preferences on the rest of us, the Constitution offers a possible solution. Article III allows for Exceptions to the Court’s appellate Jurisdiction “under such Regulations as the Congress shall make.” But that could only happen if Democrats win back the House and flip the Senate.