Since late in the afternoon of Friday, Dec. 14, when a judge in Texas struck down the entire Affordable Care Act, mainstream media has offered two arguments against the decision – it won’t survive appeal, and Republicans don’t want to repeal Obamacare anymore anyway.
But a piece on Slate published almost a week later takes a different view. “That Texas Judge Only Ruled Against Obamacare to Troll the Libs,” read the headline on Christina Ho’s piece.
Ho wrote that “eminent and knowledgeable voices form a variety of political perspectives swiftly agreed [Judge Reed] O’Connor’s ruling in Texas v. Azar faces dim prospects as a strictly legal matter. His decision depends in part on rehashing arguments about the individual mandate that were already rejected by the Supreme Court in 2012 and that are in many ways less promising now that the mandate has already been neutered by Congress’ reduction of the tax penalty to zero.”
O’Connor’s delivering declaratory judgment rather than injunctive relief was “a sign that even O’Connor recognizes that his legal position is entrepreneurial at best.”
But this, to Ho, is where the mystery begins. Could be O’Connor – “a former Republican Senate staffer turned district court judge – is angling for President Trump’s attention in a bid for higher judicial office,” she wrote. Could be the case ended up in the Northern District of Texas, Fort Worth Division, because that court has become “the principal venue for conservative forum shoppers.”
Moreover, she wrote, “Whatever O’Connor’s greater motivations, it’s worth asking why a Hail Mary ACA invalidation might appeal so much to Trump conservatives. Actual elimination of the ACA has never proved a winning political strategy.” She does not mention that campaigning almost solely on eliminating the ACA, Republicans took control of both houses of Congress and eventually the White House, as well as 1,000 state and federal legislative seats in total.
She says support for repeal has dipped as low as 13 percent, and Republicans could not pass repeal even with control of both houses of Congress and the White House. They’ve practically admitted, she wrote, “that successful repeal would leave them like the ‘dog that caught the car’ with no idea what to do with it next. So it seems clear that wreaking havoc upon the health care system is not likely still a political goal of the Republican Party.”
So if it is not mere forum shopping and Republicans no longer care about repealing ACA, what is it? Why did the judge overturn the law? His use of arguments made in favor of the legislation by Justice Ruth Bader Ginsburg – he cites her 13 times but Chief Justice John Roberts only six in the main section of his opinion, Ho writes – was “not to strengthen the legal prospects.
“The decision reads, instead, as a gotcha, a way to ‘troll the libs,’ and the judicial equivalent of the Russian mischief campaigns that played out on Facebook during the 2016 election,” Ho wrote. “These campaigns aimed to polarize, to undermine certainty, to destabilize standard to the point where Americans are not just normatively, but epistemologically, divided, and therefore to forge room for ‘alternative facts.’”
Contrast this with Slate’s reporting when a judge in Hawaii struck down President Trump’s travel ban in a case that was overturned by the Supreme Court. Noting he had twice previously struck down Trump’s attempts at a travel ban, Dahlia Lithwick, in “Trump’s Travel Ban Gets Blocked Again (Again), praised the judge for “judicial smack talk” in his opinion.
“Professional athletes mirror the federal government in this respect,” the judge wrote. “They operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with [Executive Order]-3.”
Ultimately, it was the judge who didn’t know the rules. His decision was overturned by the Supreme Court.