Monday, December 17, 2018

Radical Right Wing TX Judge Tries To Smite Obamacare - Will He Succeed?

By now,  most citizens are aware of the news that a radical right wing nut masquerading as a federal judge -  Reed O’Connor -   has issued a ruling to strike down all aspects of the ACA, otherwise known as Obamacare.   Well, we already knew Texas was the home of right wing assassins who plotted (and succeeded)  in taking out JFK in Big D, but who would have reckoned that some 55 years later a  right wing Texas judicial assassin would try to take out 133 million Americans?  Because effectively, all those millions will be left without a medical pot to piss in if this travesty is upheld.

Let's reference that in historical memory the Right's zealots have always bitched about the Left's "activist judges" who they somehow believe constantly interject themselves to settle political disputes best left to congress.   But I warrant not one of the Right's wackos will so much as whisper criticism of this rogue judge who - in the words of two law professors writing in the NY Times-  has conducted "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."

Yet this asshole, another of the extremist mutants  (along with Brett Kavanaugh) inserted into the federal bench by Gee Dumbya Bush, did it.  To grasp what's going on we need to take a stroll down memory lane as regards the ACA, especially in the past year and a half. As readers may recall, the Reeptards were hell bent - following Traitor Dotard's lead - to repeal the entire law. They wanted it more than anything on God's green earth, and actually came within one vote of succeeding in the Senate.

This was by way of what came to be known as "the skinny repeal".  This would have eliminated the individual mandate, the least popular provision of the ACA that requires all Americans to have health insurance or face a fine. It would also remove the employer mandate, requiring certain businesses to provide health insurance to employees, as well as a tax on medical device manufacturers. But, more importantly, it would not touch the Medicaid program for the poor (hence the 'skinny' aspect) .  Bear in mind here that one of the key bases of the ACA was Medicaid expansion in dozens of states.

If this measure had passed the Senate with a simple majority, it would then have entered a conference committee with the House, where Republicans could have reconciled the differences and produced a larger repeal-and-replace measure . (Most likely including Medicaid.)  They could immediately claim 'victory' and that they succeeded in what they set out to do: repeal Obamacare (at least minimally).

This did not happen because Sen. John McCain entered the Senate chamber at the last minute and cast the deciding 'no' vote, killing the cynical skinny repeal effort. The Repukes never forgave or forgot this betrayal, and most regarded McCain as a latter day Benedict Arnold.

Long story short, unable to get the votes to repeal the entire law, the Reeptard Congress just zeroed in on  the tax  penalty, aiming to eliminate it. Again, recall that in 2012 the Supreme Court upheld this penalty as an exercise of Congress’s taxing power.   Justice Roberts, in fact, wrote the decision for the five justices in favor.

Backed into a corner like rats, the Repukes did the only other thing they could, fabricate a specious lawsuit to kill the tax penalty.  Given the traitor Trump administration refused to stand up for any part of the law - even cutting back funding for advertising the ACA-  all that was needed to upend it was one renegade  judge to rule against it.  In such an event the whole thing would come crashing down, including the popular parts, i.e. youngsters able to stay on their parents' plan until age 26, and protection for those with preexisting conditions.

Well, the Repukes got their wishes fulfilled when loose cannon judge Reed O'Connor ruled the ACA was "unconstitutional"  and hence the whole law needed to come down.  Right wing screwballs salivating to take down yet another Obama legacy point had endless wet dreams.

 The rest as they say is history, with Texas and and 19 other Reep- dominated states arguing in their junk lawsuit that with zero penalty, the mandate lacked a constitutional basis because it could no longer be enforced via a tax.   The little element they appeared to forget is that under the ninth amendment, health care is a right, one of what we call unenumerated rights of the Bill of the Rights. They forgot that tax penalty or no tax penalty, mandate or not,  you cannot repeal a right using a subterfuge such as invoked by this idiot judge.

But compounding their hubris and disrespect for the ninth amendment-    the  20 rogue states (and the Texas renegade judge O’Connor )   argued  -  that the rest of Obamacare must fall, too. They claimed that the mandate was so central to the A.C.A. that nothing else in it could operate without it.  Of course this is nonsense, because the whole edifice is predicated on health care being an unenumerated right under the ninth amendment. So merely dispatching the tax penalty from the law is immaterial to the centrality of the right.  The right still stands, even if there is no tax penalty.  Indeed, the inference is that the optimal way to validate the right is to maximize health care for all, which would be a single payer system.

Further, the U.S. is a signatory to a 1994 UN Declaration that health care is indeed a right.  But there is a more technical legal basis on which the judge's ruling can also be rejected. It was articulated by two law professors- Jonathan Adler and Abbie Gluck- writing in the NY Times three days ago.   According to the pair:

"That’s not how the relevant law works. An established legal principle called “severability” is triggered when a court must consider what happens to a statute when one part of it is struck down. The principle presumes that, out of respect for the separation of powers, courts will leave the rest of the statute standing unless Congress makes clear it did not intend for the law to exist without the challenged provision. This is not a liberal principle or a conservative principle. It is an uncontroversial rule that every Supreme Court justice in modern history has applied.

Sometimes severability cases are difficult because it is hard to guess how much importance Congress attributed to one provision, especially in a lengthy law like the Affordable Care Act. But this is an easy case: It was Congress, not a court, that eliminated the mandate penalty and left the rest of the statute in place. How can a court conclude that Congress never intended the rest of the statute to exist without an operational mandate, when it was the 2017 Congress itself that decided it was fine to eliminate the penalty and leave the rest of the law intact?"

The pair went on to note that in his vapid  55-page opinion  O’Connor claimed that we  "cannot divine the intent of the 2017 Congress because Congress didn’t have the votes to repeal the entire law but wished it could".   But as they retort:

"That’s ridiculous. Congressional intent is all about the votes. One would not say Congress wished it could repeal the Civil Rights Act if only a minority of Congress supported such a move. It is conservative judicial doctrine 101, as repeatedly emphasized by Justice Antonin Scalia, that the best way to understand congressional intent is to look at the text Congress was able to get through the legislative process."

Profs. Adler and Gluck then ruminate on what happens next, asserting that,  despite this reckless ruling,  the ACA is likely to continue in place while the case moves to the higher courts.   They predict that  the appeal will almost certainly end up in the Fifth Circuit — the federal appellate court that presides over Texas-  with California and other states defending it.   The Dem-controlled  House of Representatives will also likely join the lawsuit, and I would not exclude the possibility of Reed O'Connor being subpoenaed  before the House Judiciary Committee to answer questions on his decision.  It's possible!

If the Fifth Circuit reverses Renegade Reed O’Connor, the authors think it unlikely the Supreme Court will take the case.  Why would they when the Supremes already supported the law (including the mandate)  back in 2012?  If the Fifth Circuit upholds the ruling, possible with two new activist justices (Gorsuch and Kavanagh) the authors are skeptical a majority of the  highest court would sustain this weak analysis.  Besides, it would roil the insurance markets and whole health care system as 20 million Americans would lose their health care, while premiums could rise as much as 25 percent for others, according to the analysis on CBS Early Show this a.m. by financial specialist Jill Schlesinger.

On the other hand, as Ms. Schlesinger pointed out, this ruling doesn't change anything for your coverage during 2019 IF you already enrolled.  She also added, for those who haven't decided whether or not to enroll yet:

"If you are considering this, don't listen to this and say 'oh, I shouldn't enroll'. You absolutely should enroll, and again, your coverage will be intact for 2019."
Let's also note, as the  law profs have, that Chief Justice John Roberts is sensitive to allowing the court to be an instrument of politics, particularly when doing so violates separation of powers. Justice Brett Kavanaugh is an expert on statutory interpretation who has previously said that courts should “sever an offending provision from the statute to the narrowest extent possible unless Congress has indicated otherwise in the text of the statute.

Hell, even the least qualified supreme, Clarence Thomas,  has opined that the kind of hypothesizing on which O’Connor relied is inappropriate:.  Congress’s intentions “do not count,” he wrote earlier this year, unless they are “enshrined” in a text that made it through the “constitutional processes of bicameralism and presentment”.

Even the reactionary WSJ editorial writers agree that O'Connor blew it ('Texas ObamaCare Blunder', p. A16, today) noting  "this judge's ruling will be overturned and could backfire on Republicans" adding:

"When judging congressional intent, a  judge must account for the amending congress as well the original congress..... In any case, the Supreme Court's severability doctrine calls for restraint in declaring an entire law illegal merely because one part of it is"  

Whatever the outcome, this issue has already become a political nightmare for the 'pukes, -even forcing them to go on the campaign trail before the midterms and posture and lie about keeping the best parts of the ACA.  Of course, they were disingenuous to the core given most of these hypocrites had signed onto the lawsuit attacking the ACA even as they vowed to keep the most important provisions, such as allowing preexisting conditions.

And the Kaiser Family Foundation has since found in its latest poll that fully 65 percent of Americans believe "it's very important"  that insurers don't deny Americans coverage based on their health.

Another little aspect neglected: Repukes have yet to come up with a viable replacement for the ACA.  A key aspect they omit is that a mandate is needed for any feasible insurance plan, given that costs can only be controlled if the young and healthy are pooled with the old, sick and unhealthy..  But with no mandate and no penalty there is no reason for the young and healthy to comply.   Then insurers are stuck with a vastly sicker and more expensive consumer base.

In the end the Reeptards and this Reeptardo renegade judge are hoist on their own petards.  So is Dotard Donnie who bragged while lollygagging at Mar-a-lago how "great" this judge's decision is, and oh "we will now have a great health care system".   Sorry, fool, those are two contradictory notions. Given the country's skittishness concerning "socialized" single payer health care, Obamacare is the next best option and every manjack with an IQ over room temperature digits knows it.  Well, except Trump and his lackey judge in Texas.  As the WSJ editorial writers put it (ibid.): "Trump hailed the ruling in a tweet, but he has never understood the Affordable Care Act."

Begging the question: Does this fungal mutt fouling the Oval Office really understand anything?  I doubt it!

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