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.