A Federal District Court judge for the Northern District of Texasruled the Affordable Care Act(ACA) unconstitutional on Friday night.  Judge Reed O’Connor, a George W. Bushappointee, wrote that “[the] Individual Mandate can no longer be fairly read as an exercise of Congress’s Tax Power and is still impermissible under the Interstate Commerce Clause—meaning the Individual Mandate is unconstitutional.”   

Because the Supreme Court in 2010 allowed the individual coverage mandate to stand as a tax, and Congress reduced the tax to zero in 2017, Reed argues, the entire law violates the Constitution since Congress has no power to require coverage except as a tax.  Democrats will of course appeal this decision and may have the stronger argument.  The ruling ignores the fact that Congress simply changed the tax rate – the tax itself remains in place.  Until outright repeal, the law still rests on exercise on the power to tax even as Congress exercises its discretion by applying a zero rate.  It’s also not clear that the entire law fails without the mandate.  The US Supreme Court will of course adjudicate this question – and when it does all eyes will turn to Gorsuchand Kavanaugh.

White House officials issued reassuring “your health insurance isn’t going away today” statements even as Trump tweeted his support for the ruling, illustrating the tightrope Republicans will have to walk.  Conservatives have successfully turned many Americans against the ACA as “socialized medicine” and some pay more now for coverage they like less. Still, millions have coverage for the first time and many others now have better coverage at lower cost.  And people now understand how to navigate the system and consider it the status quo.  Most importantly, many of the people who hate the ACA actually support specific provisions such as protections for people with pre-existing conditions. Even as movement Conservatives celebrate O’Connor’s opinion, it’s terrible politically for Republicans.  

The ACA rule requiring community-based underwriting for health insurance policies is an important regulation that Americans don’t want to surrender, and the ACA is good policy in other ways as well.  It’s also important to remember that before the ACA health insurance companies could not only refuse to provide new policies to people with chronic health issues (e.g., high blood pressure) or previous illnesses (e.g., pediatric heart problems) – they could refuse to cover existing customers by making a case that the patient had failed to disclose a complete health history.  See “Cancer patient tells of rips in health insurance safety net” for example.  Or what if my insurance company refused to cover my colon cancer treatment on the grounds that I failed to tell them that a procedure had uncovered polyps in a relative? In the pre-ACA system health insurance companies could refuse to cover treatment for people who had religiously paid premiums for years.  Americans don’t want to go back to that system.  Neither does the American Medical Association, the American Psychological Association, or the AARP.

Republicans know this or they would have repealed the ACA last year, and this ruling has placed them between the rock of general popular opinion and the hard place of a base that hates the ACA.  This case will get a lot of attention (curious that Reed waited until after the mid-terms to publish the opinion) as it goes through the courts.  The judge may or may not have killed the ACA, but he certainly set a key agenda item for political and policy discussions through next year and into 2020.  With Democrats controlling the House I expect to see real proposals for either tweaking the Affordable Care Act or further expansion of government programs like Medicare and Medicaid – or both.  How Republicans in the Senate respond will tell us a lot.

For the record, I believe that over the long term we should and will move to a single-payer health insurance system that ensures access to health care for every American as a matter of moral principle.  Markets have not and cannot efficiently allocate health care resources unless we define “efficient allocation of resources” in this context as “maximize profit” rather than “save lives.”  Commonwealth, not corporate wealth.

Reed’s ruling will also help highlight another agenda: the role of courts and judges in policymaking and the legislative process.  Judge Reed ruled in a lawsuit brought in part by States in an exercise of their sovereign policymaking authority.  They hoped to overturn a decision made by Congress through appeal to the judicial branch – an effort both legally and politically legitimate.  Judicial appointments depend on political considerations, notwithstanding their protection from direct popular influence. Politicians have historically shied away from attempt to ideologically co-opt the judiciary for fear of destroying its legitimacy (or fear of losing the battle for control).  Authoritarianism in the US – whether communist or fascist – would depend on support for the project from an ideological Supreme Court.

We should have both conversations.  Americans need to settle on a health care system for the long term so doctors, patients, investors, and corporations can plan.  And we need to discuss the role of judges in Constitutional interpretation more openly – not to settle on an interpretive methodology but to make sure more Americans know that who we place in judicial positions matters in our daily lives.  Since Virginia holds elections every year, these conversations will start that much sooner in the Commonwealth.