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Texas Ruling Against ACA Defies Democracy with Judicial Activism

One judge in Texas ruled Friday to take health insurance away from 17 million to 52 million Americans. Only complete jerks could celebrate that decision… and that celebration requires celebrating rank judicial activism that ignores the will of Congress:

In perhaps the most remarkable passage in a remarkable opinion,[U.S. District Judge Reed O’Connor] 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.

In his contempt for the ACA, O’Connor blinded himself to all this. Instead, he decided that what Congress “really” wanted was to invalidate the entire ACA [Nicholas Bagley, “The Latest ACA Ruling Is Raw Judicial Activism and Impossible to Defend,” Washington Post, 2018.12.15].

This judicial activism comes as the ACA stabilizes and premiums decrease. The ACA is working. Americans want it. A few cranky Republicans are thus trying to subvert democracy with a “kooky” legal theory… and we liberals must rally the people to reassert their self-interest:

A tight-knit group of Federalist Society lawyers and judges allow conservatives to advance policy ideas that lack public support through the judiciary. When in doubt, they fib and hope Fox News will help them muddy the waters.

The case will, of course, wend its way up to higher courts where hopefully cooler, more humane heads will prevail. But whether they do depends not just on the law but on the political context. The rhetoric and practice of actual majoritarian populism — rather than simply assuming Chief Justice Roberts will do the right thing — is critical in moments like this. Judicial conservatives will be restrained in their activism if and only if they believe that defying the will of the people on such consequential matters will lead to their delegitimization. It’s a fear they ought to have. But one which will only develop if progressive leaders are able to move beyond excessive fear of populism and learn to speak the language of popular majoritarianism and democratic self-rule [Matthew Yglesias, “The Latest Obamacare Ruling Part of a Larger Conservative Attack on Democracy,” Vox, 2018.12.15].

Remember, our current Attorney General, Marty Jackley, is part of the crew that wants to take away your health insurance. So will be his pipsqueak successor, Jason Ravnsborg. Let’s hold these destroyers of health care and democracy accountable for their judicial activism crusade.

38 Comments

  1. mike from iowa 2018-12-16

    Thank you, Cory, for posting this. This judge’s interpretation of the facts is probably the biggest litmus test that got him appointed.

  2. Jason 2018-12-16

    Cory,

    Are you against the US Constitution?

    Do I need to remind you we have 3 separate but equal branches of Government?

    The will of congress took away the tax.

    This isn’t Judaical activism, this is following the Constitution.

    I suppose you don’t want to discuss that just like you don’t want to discuss science?

  3. Porter Lansing 2018-12-16

    Medicare For All (who choose to buy a Medicare insurance policy). For those who don’t, won’t or can’t bring themselves to join the group (e.g. People like Evan who think it will be welfare and welfare is below their self esteem.) they’ll still be free to buy a plan on the open market.
    Sen. Schumer this morning spoke to priorities:
    1. Nullifying this judges ruling before the ill effects of ending the ACA are felt.
    2. Beginning the process to offer Medicare For All. (CA, CO, OR & WA are already forming a group to provide Universal Healthcare to residents of our states. We have enough people to make it work and leadership that want it to work. We’ll pay more taxes but have more money left at the end of every month. Sorry SD won’t be included, for a while. *A friend in SD said, “South Dakota will be last to join up.”

  4. Jason 2018-12-16

    It is Constitutional for States to pay for their residents health insurance.

  5. jerry 2018-12-16

    Great News! This will further drive trumpian republicans from the House and now, the Senate! Of course it will not change a thing in South Dakota, but that is a good thing as it is always good to be in competition for last place with Mississippi!

    Of note, the current Supreme Court ruled 5 to 4 that the ACA/Obamacare IS constitutional. Guess what? Those same 5 are still there, so there is that.

  6. Jason 2018-12-16

    Jerry,

    They ruled it was Constitutional because they said it was a tax.

    Now there is no tax.

    Will the Democrats pass a bill that Republicans will agree with?

    The ball is in the Democrats hands now.

    If the Democrats don’t pass a good bill in the House, the Democrats will be blamed.

  7. owen k reitzel 2018-12-16

    Actually Jason, Trump is on the hot seat on this (if he survives that long). A real leader would have a plan in place. Agree with Obama or not he had a plan. Being a non-leader Trump has no such plan ready. Instead he passes the buck.

    It’s on the Republicans as well. They’ve been trying to get rid of the ACA for years without offering an alternative.

    No Jason. This is squarely on the Republicans

  8. jerry 2018-12-16

    “They ruled it was Constitutional” Indeed they did. Now folks are getting even more upset at you guys. I love it man. It takes a fraud like Jackley to show how fraudulent your whole party apparatus is. Here is your trumpian swan song https://www.youtube.com/watch?v=IoyvvEWHodk

  9. jerry 2018-12-16

    I hate to say this but Thanks Jackley for putting the ACA/Obamacare back into the spotlight. Thanks to this clown car called trumpians, our new House of Representatives can get started on Medicare for All. The other real plus to this is that now there will be voter registration all tied together with a national health plan! Finally, two birds with one stone will be accomplished! No more claims of voter suppression or voter fraud. Life is funny like that.

  10. bearcreekbat 2018-12-16

    The articles that I have seen about the decision seem heavy on objections, yet sparce on the Court’s actual analysis. I did find a link to the entire written decision, which provides for interesting reading and additional understanding of the Judge’s articulated reasons. Cory usually posts these links in his articles, but I didn’t see it here, so for those who seek an even greater understanding of the reasons given by the Judge for the decision, here is the actual case link:

    https://www.documentcloud.org/documents/5629711-Texas-v-US-Partial-Summary-Judgment.html

  11. o 2018-12-16

    During the Obama administration, the GOP really went into the long game. I think at that time even the GOP saw the fickle nature of elected political office (House, Senate, Presidency) and although congress could obstruct agendas, to REALLY do permeant, idealogical policy, the judicial branch is the key — especially the Supreme Court. The biggest legislative branch obstruction to the Obama presidency was not any policy/legislative obstruction, but slow-playing judge confirmations or stone-walling on ideology. Once issues are ruled un-Constitutional, the legislative process is neutered.

    The US is becoming a nation of no laws: no legislative branch movement, refusal to enforce at the executive branch, and constant striking from the judicial branch. In this atmosphere, it becomes a new survival of the fittest; those who can exert power get to do that unimpeded to those who cannot protect themselves from the powerful.

  12. jerry 2018-12-16

    Thanks bearcreekbat, interesting read. Most of the read has to do with the Individual Mandate which has long since left the building. In short, Marty Jackley owes the state of South Dakota a reimbursement for wasting his time on the dumbest of dumb. It should take the Supreme Court about 20 minutes to kick this rubbish to the curb.

    To me, it does and could open another Pandora’s Box and that is the mandate put into the prescription drug plans. Part D for Medicare in which you are mandated to purchase prescription drug coverage or pay a fine if you do not.

  13. mike from iowa 2018-12-16

    Well, bcb, if you got through that convoluted mess, more power to your learned mind, friend.

  14. jerry 2018-12-16

    Indeed mfi, more than half of the pages are devoted to one thing, the individual mandate…that no longer exists. I am surprised Jackley did not bring up his dislike of Brussels Sprouts as this is as stupid as that.

  15. jerry 2018-12-16

    Here is trump wanting to end the 1st Amendment “A REAL scandal is the one sided coverage, hour by hour, of networks like NBC & Democrat spin machines like Saturday Night Live. It is all nothing less than unfair news coverage and Dem commercials. Should be tested in courts, can’t be legal? Only defame & belittle! Collusion?
    66.9K
    6:58 AM – Dec 16, 2018” trump, early this morning before his Big Mac.

    No regard of the law is the new republican way.

  16. Porter Lansing 2018-12-16

    Awwwwwww ……. President Trump doesn’t like Saturday Night Live making fun of him and he doesn’t like Chuck Todd saying he directed an employee to commit felonies. Personally, I never miss either show. Re-education camps, Mr. President?

  17. jerry 2018-12-16

    Republican senators are spooked man. Barrasso was on earlier and was chewing his fear back. Even in red Wyoming, they know they are playing with fire.

    ” “In a separate interview Sunday with Sen. Susan Collins (R-ME), CNN’s Jake Tapper asked whether the senator agreed with President Donald Trump, who called O’Connor’s ruling “great.”

    “I don’t,” Collins responded, quickly adding: “First of all, I would point out that this ruling is not going to affect people who are currently enrolled or in Obamacare policies, or their policies for 2019.”

    She said later: “There’s no reason why the individual mandate provision can’t be struck down, and keep all of the good provisions of the Affordable Care Act.””

    Oh this is gonna be good. They eliminated the individual mandate in the tax bill and now got it declared unconstitutional. I look for the mandate to come back like the Part D deductible mandate. Only for the healthcare, when you sign up for with that health issue, you are gonna pay a penalty for when you were eligible until the time you needed it. Individual choice and individual penalty, just like old fellers have to look at.

  18. o 2018-12-16

    Where is the GOP “replace” bill for the GOP “repeal and replace” promise? No bill was sent to President Obama; since holding both the House and Senate, no bill has been sent to President Trump. The “repeal” is happening through executive and judicial action – but a replacement MUST be legislative. Where is the lame duck GOP push to keep this promise like the GOP lame duck sessions in Michigan and Wisconsin to strip new Governors or elected power?

  19. Jason 2018-12-17

    o,

    When did the Senate get 60 Republicans?

    I’m not surprised you don’t know how the Senate works.

  20. mike from iowa 2018-12-17

    Drumpf was going to have a replacement for Obamacare on Day 1 of his bogus administration. One that would be cheap and cover everyone, but like all other Drumpf lies he lied about this one bigly.

  21. jerry 2018-12-17

    Pretty simple stuff to replace ACA/Obamacare. All you have to do is install the Medicaid Expansion for all 50 states, Puerto Rico, Virgin Islands, Guam and every other place we have a hold on. Add the Risk Corridor that Little Marco took out and voila!, we have replaced the ACA/Obamacare with the ACA/Obamacare.

    Now, I would add negotiating pricing for prescription drugs and to put doctors and hospitals on the same schedule as what Medicare allows in the “Doc Fix”.

    Did I miss anything?

  22. bearcreekbat 2018-12-17

    Jason, I thought McConnell decided the 60 vote filibuster rule was now to be used as a subterfuge to hide behind when the republican majority did not want to admit they lacked the votes to give Trump whatever he might want. After all, that rule didn’t stop either Gorsuch or Kavanaugh from being approved for the SCOTUS by way less than 60 votes.

    And any whataboutism argument that the dems did it 1st doesn’t work, as regardless of origin, the 60 vote rule has been rendered an impotent relic that can be disregarded at will these days. Isn’t that currently exactly “how the Senate works” under a republican majority? Surprising?

  23. jerry 2018-12-17

    Ruh oh, Nancy Pelosi says “Tonight’s absurd ruling exposes the monstrous endgame of the GOP’s all-out assault on people w/ pre-existing conditions & the ACA. When @HouseDemocrats take the gavel, the House will swiftly intervene in the appeals process to #ProtectOurCare!” A lot of sphincter tightening from the trumpians on this deal. Thanks Jackley for starting the movement, #ProtectOurCare” I think our South Dakota delegation will soon find that they want to spend more time with their families.

    Nelson, there’s hope for you yet, you and Steve King, what a party.

  24. mike from iowa 2018-12-17

    Jason never heard of the nukular option.

  25. Jason 2018-12-17

    The Republicans did not get rid of the 60 vote rule for laws not involving Judges.

    Are you saying the Dems are going to BCB if they ever gain control?

  26. bearcreekbat 2018-12-18

    Jason, re-read my comment to see what I am saying.

  27. Jason 2018-12-18

    Your comment has nothing to do with the Senate rule for non-judge votes which would apply in this case.

  28. bearcreekbat 2018-12-18

    Jason, if you think you understood what my comment addressed, then why did you ask what I was saying?

    Given your claim that o doesn’t “know how the Senate works,” I assume you think you do know how it works. If so, do you understand the republican majority has the absolute power under Senate rules to change the 60 vote requirement for non-judge votes? And since republicans have this power, then wouldn’t you have to agree that republicans bear full responsibility for failure to pass bills in the Senate with their 51 seat majority (plus a republican VP to break ties)? How did Senate rules enable minority democrats to stop republicans from exercising this absolute power?

  29. Jason 2018-12-18

    BCB,

    We are discussing the current rules. Under the current rules, o is incorrect.

    If the rule is changed in the future, I will address your statement. Right now your statement is a hypothetical.

    Please let me know when you would like to discuss the current rules.

  30. mike from iowa 2018-12-18

    Jason check out the Byrd Rule and lern some gubmint along the way.

    At the beginning of this year, with a bare 52-vote majority, far short of the 60-vote filibuster threshold, Republican leadership devised a plan to bypass Democrats altogether on major legislation: They would tie their major agenda items to the budget through “budget reconciliation,” a bill that can impact spending, revenue, or the debt ceiling with only a party-line vote in the Senate.

    It’s a process President Bill Clinton used to pass welfare reform in 1996 and President George W. Bush used to pass tax cuts in 2001 and 2003. It’s how President Barack Obama got several budgetary amendments to the Affordable Care Act passed. Republicans also attempted to use budget reconciliation to try to pass an Obamacare repeal bill in the Senate

    As Vox’s Dylan Scott explained, any bill being passed under reconciliation has to comply with every section of the six-part Byrd Rule. “If it fails any one of those tests, it must be stripped out”:

    1. The provision must change federal spending or revenue.

    2. If the bill does not meet the budget resolution’s instructions to reduce the federal deficit, any provision that results in either increased spending or decreased revenue is removed until it does meet those targets.

    3. The provision must only affect policies that fall under the jurisdiction of the specific committees that were instructed in the budget resolution.

    4, The provision’s effect on spending or revenues must be more than incidental to its policy impact.

    5. The provision cannot increase the federal deficit at some point in the future, beyond the typical 10-year “budget window” that is used to evaluate legislation.

    6. The provision cannot change Social Security.

  31. bearcreekbat 2018-12-18

    mfi, it appears that you might know a bit more about “how the Senate works” than our local critic, Jason.

    Meanwhile, nice dodge Jason – when you are called out for inane comments or know you are wrong, never admit it, just dodge the question and distract – a lesson learned from Trump. Excellent attempt at using this tried and true Trump tactic!

  32. mike from iowa 2018-12-18

    Here is moar for Jason to learn about-

    Writing about the Employee Free Choice Act, Melanie Trottman and Brody Mullins of the Wall Street Journal write (3/10/09):

    At least six Senators who have voted to move forward with the so-called card-check proposal, including one Republican, now say they are opposed or not sure–an indication that Senate Democratic leaders are short of the 60 votes they need for approval.

    It really is worth being specific on this: It does not take 60 votes to pass an ordinary bill in the Senate; it takes a majority of the senators voting. If everyone is present, it takes 51 votes, or 50 votes if the vice president votes to break the tie. Under the current rules of the Senate–which can be altered by a majority vote–it takes 60 votes to proceed to a vote on a bill when some senators want to continue debate forever, or filibuster.

    It has not traditionally been the custom that every bill gets a filibuster and so requires 60 votes in order to pass; plenty of bills in the past have passed the Senate with fewer than 60 votes. In recent years, the filibuster has changed from an occasional gambit to a more routine part of the process. Since the Democrats took back the Senate after the 2006 elections, it has become almost a matter of course that a bill opposed by most of the minority party will have to overcome a filibuster in order to pass.

    But that doesn’t mean that a bill needs 60 votes to be approved; it means 41 senators can keep a bill from being voted on. The distinction is worth making, particularly since the ability of the minority to obstruct is dependent on the willingness of the majority to be obstructed.

  33. mike from iowa 2018-12-18

    and for those of us who remember a more agreeable congress back in the days, the filibuster abuse was absolutely started by the party with nuts in their wings. I ain’t lying.

  34. jerry 2018-12-22

    mfi, check this out man. “So, it’s over, right? Well…not quite. The 2019 ACA Open Enrollment Period officially ended last Saturday…but only in 43 states. In the remaining seven (+DC), Open Enrollment hasn’t ended yet, and won’t for anywhere from one to six more weeks from now!

    2019 ACA Open Enrollment is still ongoing for fully 25% of the population!”

    Texas judge just handed the ACA a big favor! Thanks to the ineptness of Marty Jackley, things are looking up for not only the ACA, but also for 2020! Send him a thank you card for being such a failed lawyer. The only thing that boy can do ever, is sweep crap under the rug!

  35. mike from iowa 2018-12-22

    Mississippi (extreme Southern South Dakota) guv is eyeing expanding Medicaid.

    On a brighter note, 2 Dem Senators managed to get the Senate to finally pass a federal law making lynching illegal. After 200 tries. The wingnut that presided over the Senate vote wan none other than racist, temporary Senator Hyde-Smith of Mississippi.

    Go sign ups for O-Care.

  36. Jason 2018-12-22

    Why is the Government shut down if like o says, the Republicans can do whatever they want in the Senate?

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