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“This Is Insanity”: Legal Scholars React To Federal Judge’s Dismantling of ACA

By December 15, 2018No Comments

Last night, ultra-conservative federal judge Reed O’Connor overturned the will of Congress and declared the Affordable Care Act (ACA) unconstitutional. His decision is wrong and must be overturned. Don’t take our word for it. Here’s what legal scholars from both sides of the aisle had to say:

Nicholas Bagley, University Of Michigan Health Law Professor: “This Is Insanity In Print.” “The court’s decision is NOT limited to guaranteed issue and community rating. In the court’s view — and this is *absolutely* insane — the entire Affordable Care Act is unconstitutional…If you were ever tempted to think that right-wing judges weren’t activist — that they were only ‘enforcing the Constitution’ or ‘reading the statute’ — this will persuade you to knock it off. This is insanity in print, and it will not stand up on appeal.” [Nicholas Bagley Twitter, 12/14/18]

Timothy Jost, Washington And Lee University Law Professor: “It’s Timed To Cause Maximum Chaos.” “This is breathtaking in its sweep & I think O’Connor has no idea what he’s doing..This is going to get thrown out. But I also think it’s timed to cause maximum chaos.” [Emma Platoff, Texas Tribune Reporter, 12/14/18]

Nicholas Bagley, University of Michigan Law Professor: “It’s A Case Of Raw Judicial Activism. Don’t for A Moment Mistake It For The Rule Of Law.” “In any event, it doesn’t matter what Congress meant to do in 2010. It matters what Congress meant to do in 2017, when a different Congress made a different call about whether the mandate was essential. We know what Congress wanted to do in 2017: repeal the mandate and leave the rest of the act intact. Its judgment could not have been plainer. (I know. I was there! So were you. It wasn’t that long ago.) That’s not how O’Connor sees it. In perhaps the most remarkable passage in a remarkable opinion, he wrote 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.’ Your jaw should be on the floor. On no account did Congress in 2017 ‘intend to preserve’ the individual mandate. It meant to get rid of the loathed mandate — and it did, by eliminating the penalty that gave it force and effect…This case is different; it’s an exercise of raw judicial activism. Don’t for a moment mistake it for the rule of law.” [Washington Post, 12/15/18]

Abbe Gluck, Professor Of Law At Yale Law: Case Is “Big Invasion Of Legislative Power.” “‘That’s a big invasion of legislative power. … Rarely would you see one tiny provision of a statute that kills a 2,000-page law,’ said Gluck. ‘Sometimes the rule of law has to win out over politics. I’m sorry to be so dramatic, but this case, it’s something else.’” [Buzzfeed, 12/14/18]


Conservative Legal Scholar Jonathan Adler And Abbe Gluck, Professor Of Health Law At Yale Law School: “This Decision Makes A Mockery Of The Rule Of Law And Basic Principles Of Democracy.” “A ruling this consequential had better be based on rock-solid legal argument. Instead, the opinion by Judge Reed O’Connor is an exercise of raw judicial power, unmoored from the relevant doctrines concerning when judges may strike down a whole law because of a single alleged legal infirmity buried within…We were on opposing sides of the 2012 and 2015 Supreme Court challenges to the Affordable Care Act, and we have different views of the merits of the act itself. But as experts in the field of statutory law, we agree that this decision makes a mockery of the rule of law and basic principles of democracy — especially Congress’s constitutional power to amend its own statutes and do so in accord with its own internal rules.” [New York Times, 12/15/18]

Jonathan Adler, Professor Of Law At Case Western Reserve School Of Law: “This Is A Surprising Result, And One That Is Hard To Justify.” “This is a surprising result, and one that is hard to justify…And did I mention standing? The Justice Department somehow neglected to raise standing in its briefing, but Judge O’Connor addressed it nonetheless (as he should have, as Article III standing is jurisdictional). Despite recognizing the need to address standing, Judge O’Connor completely botched the relevant analysis, concluding the plaintiffs have standing to challenge a provision of a law that has no legal effect… However superficially plausible the plaintiff states’ claims initially appear, they melt upon inspection. The more one digs into them, the less substantial they appear.” [Reason, 12/14/18]

Law Professors From Both Sides Of The Aisle, Including Jonathan Adler, Ilya Somin, Nicholas Bagley, Abbe Gluck, and Kevin Walsh, Note That Despite Their Different Policy Perspectives, They Agree That DOJ’s Arguments About Severability Are Inconsistent With The Law. “[A] court’s substitution of its own judgment for that of Congress would be an unlawful usurpation of congressional power and violate basic black-letter principles of severability. Yet that is what the plaintiff States and the United States invite this Court to do.​..This time-shifting of congressional intent misapplies severability doctrine. By expressly amending the statute in 2017 and setting the penalty at zero while not making other changes, Congress eliminated any need to examine earlier legislative findings or to theorize about what Congress would have wanted. Congress told us what it wanted through its 2017 legislative actions.” [Jonathan Adler et. al, 6/14/18]