The federal judge in Texas who ruled the Affordable Care Act unconstitutional said today that the law can stand while his judgment is under appeal.
In his order issuing a stay and final partial judgment in the controversial case, U.S. District Court Judge Reed O’Connor reiterated that he believes the entire ACA cannot stand without its individual mandate penalty, which Congress zeroed out last year. O’Connor argued that appellate judges will agree with his judgment, but said it should not take effect while the case is being appealed. “[M]any everyday Americans would otherwise face great uncertainty,” he wrote.
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The judge’s order means that Obamacare will likely remain the law of the land for at least another year. Depending on how the appeals proceed, it also tees up the possibility of a Supreme Court ruling on the case in 2020, during the presidential campaign.
Public health groups, Democrats and even some Republicans had warned of catastrophic cuts in health coverage if O’Connor’s Dec. 14 ruling to strike down the entire ACA had been allowed to take immediate effect. Many health policies proposed by the Trump administration, including efforts to lower drug prices and reshape hospital payment, also depend on provisions of the law.
Seventeen states defending the ACA — led by California Attorney General Xavier Becerra — had asked O’Connor to clarify the ramifications of his ruling so they would be able to file an immediate appeal to the Fifth Circuit Court of Appeals.
A spokesperson for Becerra said that California is prepared to appeal the decision “imminently.”
In his new filing, O’Connor expanded his reasoning for siding with the conservative states seeking to strike down Obamacare, arguing that they have standing to bring the case. This point has been disputed, because the conservative states have struggled to show how the ACA has harmed them.
O’Connor also stressed that “courts must refrain from resolving policy disputes” created by Congress. His conclusions were widely panned, including by conservative legal scholars who maintain that O’Connor continues to misread the law and is engaging in the same judicial activism that he decries.
“I’ve been very critical of Judge O’Connor’s severability analysis, but the standing analysis in these opinions may be even worse — and that’s saying something,” tweeted Jonathan Adler, a Case Western Reserve University law professor who was a legal architect of another major ACA challenge. “I will be gobsmacked if O’Connor’s opinion survives review in the Fifth Circuit.”
O’Connor also noted that four other counts remain unresolved — signaling that even if the appeals court overturns his ruling, conservative states could find further paths to weaken the ACA. The remaining issues include challenges under the Administrative Procedures Act and the Fifth and 10th amendments.