A federal district judge in Texas who said the entire Affordable Care Act — former President Barack Obama's signature legislative achievement — was unconstitutional ruled in a new opinion that the law will remain in place while an appeal on his earlier decision is being pursued.
Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas also said the appeal to the U.S. Court of Appeals for the Fifth Circuit in New Orleans may immediately move forward without waiting for him to rule on other aspects of the lawsuit, which has been brought by Republican attorneys general and governors from 20 U.S. states.
"We march forward," California Attorney General Xavier Becerra, who is leading a coalition of 17 Democratic state attorneys general in defending the ACA, said in a tweet shortly after O'Connor's Dec. 30 evening opinion was delivered.
Becerra said the judge had granted everything the coalition had sought in its Dec. 17 motion, in which the group of Democrats asked for an immediate stay on O'Connor's Dec. 14 decision and to permit the case to proceed to the Fifth Circuit. They also asked the court to make clear that the ACA was still the law of the land and would continue to be enforced and implemented by states, the federal government and entities across the country until an order by the court expressly stated otherwise.
"At the end of the day, we're working to keep healthcare affordable and accessible to millions of Americans," Becerra wrote on Twitter.
In siding with the state attorneys general, O'Connor ruled Dec. 14 that when congressional Republicans zeroed out the ACA's tax penalty for the individual mandate last year under tax reform, it rendered the remainder of the 2010 healthcare law unconstitutional.
In his Dec. 30 opinion, O'Connor said he believed the Fifth Circuit would agree with him.
But he said he was granting the stay and partial final judgment "because many everyday Americans would otherwise face great uncertainty during the pendency of appeal."
A question of standing
Rather than defending the ACA, the Trump administration sided with the plaintiffs in the case, asking the court specifically to strike down the provision that protects Americans with pre-existing medical conditions.
The Trump administration, however, acknowledged the law was intertwined with the functioning of the nation's healthcare markets.
In Dec. 21 filings with the court, the Justice Department and the Republican plaintiffs both said a stay was not warranted.
While the Republican attorneys general argued that the individual mandate was unconstitutional and inseverable from the ACA's pre-existing condition provisions, the Trump administration said it wanted the appeals court to review the severability issue.
University of Michigan law professor Nicholas Bagley, who had called O'Connor's Dec. 14 ruling "insanity in print," said the Dec. 30 opinion was "a welcome spark of sanity from the judge."
Bagley, however, said he agreed with Jonathan Adler, director of the Center for Business Law and Regulation at Case Western Reserve University, that the new opinion was "very shoddy work."
The sources O'Connor cited "don't even support his analysis," Adler wrote on Twitter.
He argued that the plaintiffs in the case lack standing because they have not shown they have been harmed by the ACA.
The court may assume the plaintiffs are correct on their legal claim that the individual mandate is unlawful, but they must still show the mandate itself is the source of an "actual, concrete and particularized injury," Adler said.
"In this case, plaintiffs have not even pled allegations sufficient to establish standing, let alone made any showing," he said. "Claiming 'I feel obligated' doesn't cut it. O'Connor cites no cases to the contrary — because there aren't any."
Adler noted that he has been "very critical" of O'Connor's severability analysis, "but the standing analysis in these opinions may be even worse — and that's saying something."
"I will be gobsmacked if O'Connor's opinion survives review in the Fifth Circuit," he said.