Anti-Obamacare litigation goes further through the looking glass

The long and wild history of anti-Obamacare legal chicanery took yet another giant leap through the looking glass on Friday. After Republicans in Congress face-planted in their effort to repeal the Affordable Care Act, their Republican brother-at-arms in a federal district court in Texas opted to finish the job for them, striking down the law in its entirety based on legal reasoning so spurious that it’s making even the most ardent health reform opponents blush. The decision in Texas v. United States — so embarrassing on the merits it even made the staunchly conservative Wall Street Journal editorial page blush — is a definitive sign that the endless legal campaign against the ACA has kept pace with the downward spiral of conservatism in the Trump era.

Judge Reed O’Connor is a notoriously partisan judge appointed by President George W. Bush. He’s also the only fully active judge sitting in federal district court in Fort Worth, Texas, making his courtroom an open invitation for forum-shopping lawyers with a right-wing axe to grind, like the Texas Attorney General. Judge O’Connor has previously used his perch to block Obama administration regulations protecting transgender students and patients.

He’s now proven to be a willing and eager partner in the joint venture between the Trump administration and Republican state attorneys general to repeal Obamacare in court. The theory is that Obamacare was rendered unconstitutional after Republicans used the 2017 tax bill to zero out the tax people for people who go without health insurance. The red state AGs argued — and Judge O’Connor has now agreed — that because Chief Justice Roberts upheld the individual mandate in 2011 only as a “tax,” the mandate is now unconstitutional; and because the mandate was essential to the ACA, the rest of the law — everything from its protections for people with preexisting conditions through its Medicaid expansion — must fall, too.

There’s a pretty gaping flaw in that logic: the 2017 Congress already decided that the individual mandate is not essential to Obamacare when it opted to repeal only the mandate while leaving the rest of the law in tact. However unwise that may have been as a policy choice, Congress affirmatively manifested its intent that it wanted a mandate-less ACA on the books. The court didn’t have to guess at how much of the law Congress would retain without the mandate (what’s known in legalese as “severability”) because Congress had already demonstrably, affirmatively told it.

Not so! said Judge O’Connor. In distinctly Trumpian logic, O’Connor contorted his legal analysis to arrive at his desired political result through a potent cocktail of high-grade gaslighting and baloney sliced nearly metaphysically thin. O’Connor denied that Congress even repealed the individual mandate — literally writing, “consider what Congress did not do in 2017—or ever. First and foremost, it did not repeal the Individual Mandate.”

He arrived at that conclusion by attempting to separate the individual mandate from its enforcement penalty, insisting that Congress repealed the penalty (by lowering it to $0) but left the mandate intact. (That’s a quirk of Congress enacting the Republican tax bill through budget reconciliation.) But the two are one in the same: a mandate without a penalty isn’t a mandate at all, but really just an empty-holstered suggestion.

Undeterred, Judge O’Connor forged on, ultimately arriving at this alternative-reality whopper, stating 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.” That would be news to Donald Trump, who a year ago ebulliently told a Cabinet meeting, “The individual mandate is being repealed. [. . .] When the individual mandate is being repealed, that means Obamacare is being repealed.” It would also be news to the Republican Congress that spent a decade trying to do the exact opposite of “preserv[ing]” what’s “essential to the ACA” through repeated repeal votes.

Judge O’Connor’s theory seems to be that the 2017 Congress inserted a poison pill into the law — by leaving the unconstitutional husk of the individual mandate in place — that would take down the entire law in court. That’s the same Congress that tried and failed for a year to repeal the ACA in whole or in part, and could never assemble the votes. It’s a theory that defies reality.

His decision will have no immediate impact because he only issued what’s known as declaratory relief, rather than immediately enjoining the law. His decision is therefore best read as an op-ed screed. It will also be appealed. Experts are confident that the decision won’t hold up in the Fifth Circuit or the Supreme Court — that it’s reasoning is too outlandish for more responsible conservative judges to embrace, and Obamacare will go on to live its twelfth* life (I’ve lost track at this point).

I’m not so sure. We’ve seen past legal challenges to Obamacare go from “off the wall” to “on the wall” with terrifying speed, thanks to an ideological commitment among conservatives to undoing universal health care that cuts across all branches of government. The first round of litigation brought against the individual mandate — literally from the moment the ACA was signed into law — packed frivolous talk radio arguments about Big Government trampling on individual liberty into an invented limitation on Congress’s authority to regulate commerce. That gained enough traction among Republican Party elites and judges to come within a single vote of taking down the law at the Supreme Court in NFIB v. Sebelius.

In 2014, conservative lawyers seized on some inartful phrasing in the law to connect the dots to a supposed congressional scheme to coerce the states to run their own online health portals, under the supposed threat of cutting off insurance coverage for millions of their residents and inflicting insurance market meltdowns within their borders. That longshot bid too wound its way to the Supreme Court as King v. Burwell, winning the votes of three conservative justices.

Understanding the Obamacare cases is an exercise in tracing the descent of the broader conservative movement. NFIB was an exercise in the self-defeating knee-jerk libertarianism of the Tea Party era. King was a conspiratorial ruse apiece with the right’s angry, out-of-power pre-Trump years. And now Texas epitomizes the willful self-delusion and alternative realities of conservatism under Trump.

Up to this point, legal conservatism has been more than willing to follow movement conservatism along down this long, tortured descent. As higher and higher courts get their hands on Texas v. United States, we will learn just how deep the corrosion goes.

Hobby Lobby, Corporate Power, and Employer-Sponsored Health Insurance

On Tuesday, the Supreme Court heard oral arguments in a pair of cases challenging Obamacare’s rule requiring most employers to offer contraceptive coverage in their employee health insurance plans. While these cases have contraception and women’s rights at their center, they also raise significant issues about corporate influence and changes in our health care system.

Just to review how we got here: Part of President Obama’s 2010 health care reform law requires employers to offer their employees health care that covers contraceptives. The law exempts religious institutions – like churches and synagogues – from this mandate, and accommodates religious non-profits – like universities and hospitals – by letting insurers offer separate contraception coverage directly to their employees. It does not, however, offer any exemption for religious for-profit organizations. The mandate then breaks down like this:

Class of Employer Contraception rule under ACA:
Religious institutions (churches, synagogues, etc.) Not required to provide
Religious non-profits (universities, hospitals, etc.) Not required to provide, but direct provision from insurer to employee
Religious for-profits (Hobby Lobby, other businesses w/ observant ownership) Required to provide

Enter Hobby Lobby and Conestoga Wood, the two companies challenging the contraception rule before the Supreme Court. These companies are not exempt from providing contraceptive coverage to their employees, but they maintain that doing so violates their owners’ closely held religious beliefs. They rely on a 1993 law called the Religious Freedom Restoration Act (or “RFRA”), which forbids the government from substantially burdening a person’s religious beliefs unless it has a compelling reason for doing so.

Therefore, these cases hinge on: (1) whether corporations like Hobby Lobby and Conestoga Wood are “persons” that can assert protected religious beliefs under RFRA; (2) whether the contraception mandate is a substantial burden on the companies’ religious beliefs; and if so, (3) whether the government has a compelling interest in promoting contraceptive coverage, and whether imposing a mandate on employers is the least-intrusive way of promoting this interest.

The core legal arguments over religious freedom and contraceptive rights have been thoroughly dissected elsewhere, so I’d like to focus on other issues underlying these cases: namely, the power of business interests, and the structure of our post-Obamacare health care system.

Corporate Power & Health Care Autonomy

Much of what animates our arguments about these cases is disagreement over how much power corporations ought to have. Mandate opponents draw on the legal doctrine that treats corporations as if they are individual persons to argue that corporations can exercise religious and conscience rights. Corporate personhood doctrine has generally distinguished between the corporation and its owners, and has not (yet) recognized corporate religious beliefs, so the mandate opponents seek to doubly extend rights for businesses.

Mandate supporters resist this notion of corporate rights and freedoms. Many are sensitive to the expansion of corporate rights in the wake of the Supreme Court’s decision in Citizens United, which validated free speech rights for corporations engaged in political spending. To some, the idea that corporations can exercise rights just like natural persons upends the traditional understanding of the corporate form as a neutral vehicle through which employees and employers contract to conduct business. These rights, moreover, come at the expense of corporations having obligations in society by allowing them to opt out of generally applicable legal duties.

Businesses are not wrong to argue that the Supreme Court opened the door for these cases when it reaffirmed corporate speech rights in Citizens United. However, workers are understandably fearful of the outgrowth of corporate power. In an environment of stark economic inequality, where 1% of earners holds over 40% of the country’s wealth, and a marginalized labor movement, employees understandably feel dominated by business interests. Leaving workers at the mercy of ownership’s moral and spiritual beliefs would add one more dimension to this domination.

Decoupling Jobs from Insurance

Are workers right to fear that corporate rights come at the expense of their health care autonomy? Supporters of the contraception mandate argue that employer conscience-based decisions will infringe on their freedom to direct their own health outcomes and lend protection to discriminatory practices by employers. Such a fear is understandable given how long our health care system has been dependent on employer-provided insurance. Employers occupy a quasi-governmental role as health insurance providers of first resort. If corporations have discretion in how they provide health insurance, then workers’ health freedom is implicated.

The companies opposing the mandate, however, argue that there are other ways for their employees to obtain contraceptive insurance. One obvious way is through the centerpiece of Obamacare: the state and federal health insurance marketplaces.

This tension – over whether corporate religious choices impede employees’ freedom of health – is a product of the unique state of our health care system. Obamacare represents the first significant nudge away from employer-sponsored insurance.  The law’s tax credits and marketplaces have breathed life into inoperative individual health insurance markets, meaning employer-sponsored insurance is not “do or die” anymore.  Even Obamacare’s (twice delayed) employer mandate arguably replaces a traditional norm of obligation for employers to provide health insurance with a new ethic where employers can buy out this obligation by paying a fee.

Complete decoupling – as severing the link between our jobs and our health insurance is called – is widely considered to be a great thing, supported by economists and policymakers on both the left and the right. It would create a more dynamic workforce by freeing people to leave jobs without the fear of losing their health insurance. It would also reduce administrative costs from employers, liberated from having to manage costly and time-consuming health plans.

This transformation away from employer-sponsored insurance, however, is new and uncertain, along with being highly incomplete. Because a functioning individual health insurance market is a new phenomenon for most of us, many aren’t yet comfortable completely trusting it; it’s fundamentally different from the employer-based health insurance system they’ve always known. Despite forecasts to the contrary, this shift is also far from complete. Our health insurance system still favors employer-sponsored insurance, most notably by excluding health insurance benefits from taxation. For many, the value of this tax exclusion exceeds the value of Obamacare’s health exchange subsidies, which are means-tested based on an individual’s income. So on net, our system certainly still favors employer-based health insurance.

All of which is to say that the anxiety felt by contraception advocates is real and defensible, flowing from reliance on our traditional employer-based insurance system. But the long-term solution presented by mandate opponents – obtaining health coverage outside the employer’s auspices – is both realistic and desirable.  Realistic because the seeds have been planted by Obamacare, and desirable because it would relieve employers of not just contraceptive coverage decisions, but all health care decisions. This, of course, would (mercifully) render our arguments about contraception and employers’ religious beliefs moot.

The specter of employers empowered to pick and choose which medical treatments comport with their moral code haunts many concerned observers of Hobby Lobby. We can truly solve this problem by reorganizing our health insurance system around something besides our jobs – whether that’s government-provided health insurance, competitive individual marketplaces, or something in between.


For more on the Hobby Lobby case, see the DIane Rehm Show’s fantastic panel discussion, and this comprehensive preview from the Washington Post.