A federal district court judge in Texas has accepted a strained and implausible argument that the Affordable Care Act must be struck down because Congress eliminated the tax penalty for failing to purchase qualifying health insurance.
This evening, as the Affordable Care Act's enrollment period ended, Judge Reed O'Connor of the U.S. District Court for Northern District of Texas issued his much-awaited opinion in Texas v. United States, concluding that the individual mandate is unconstitutional and that, as a consequence, the entire Affordable Care Act is invalid. This is a surprising result, and one that is hard to justify.
I provided background on the implausible claims behind this suit here and here. Among other things, it's not clear why the states had standing to file their claim, and the argument that the entire ACA must fall because of the individual mandate's alleged infirmity is strained, to say the least, for reasons I outlined with Abbe Gluck in this NYT piece and this amicus brief. I also debated the merits of the case in this FedSoc podcast.
As the foregoing makes clear, I've been highly skeptical of the claims in this case from the beginning. Thus the result in the opinion is surprising -- and surprisingly weak. It is, in many respects, the conservative equivalent of so-called #Resistance judicial opinions that have embraced questionable legal arguments deployed to subvert objecitonable Trump Administration policies. I would be quite surprised if this opinion survives the inevitable appeal to the U.S. Court of Appeals for the Fifth Circuit, and even more surprised if this result garners the support of more than two justices on the Supreme Court (if the case even gets that far).
[This post will be updated as I have time to analyze the opinion.)
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