People For the American Way

Trump Judge Casts Deciding Vote in Lawless Judicial Assault on the ACA: Confirmed Judges, Confirmed Fears

News and Analysis

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

With Trump judge Kurt Engelhardt casting the deciding vote, a divided three-judge panel of the Fifth Circuit issued a legally bankrupt decision sabotaging the Affordable Care Act. Engelhardt joined Judge Jennifer Walker Elrod’s opinion holding that the former mandate to purchase health insurance is unconstitutional, thereby making it the majority ruling in the case. The court sent the case back to the district court to determine if the rest of the ACA should be struck down as a consequence. Judge Carolyn Dineen King wrote a powerful dissent. The December case is Texas v. United States.

After Congress eliminated the individual mandate in 2017 by reducing the tax penalty to zero, several conservative states created a meritless lawsuit arguing that the “mandate” was no longer a tax and—under the Supreme Court’s first Obamacare decision—was beyond Congress’s constitutional authority to regulate interstate commerce. Even more bizarrely, they argued that since the mandate was an essential component of the law, Congress would not have adopted any of the ACA without the mandate.

The Trump administration has supported the lawsuit, urging the court to strike down the entire Affordable Care Act. The legal argument is so weak that career Justice Department officials refused to sign the brief. The political hack who did sign the brief, Chad Readler, was quickly rewarded by Trump and the Republican-controlled Senate with a lifetime seat on the Sixth Circuit Court of Appeals.

Judge Elrod, joined by Engelhardt, chose to further their fellow Republicans’ scheme. In a powerful dissent, Judge Carolyn Dineen King demonstrated the complete illogic of her colleagues’ reasoning.

As Judge King pointed out, the mandate no longer exists: There is no penalty whatsoever for not buying health insurance. Without any “harm,” an individual plaintiff who does not buy insurance has no standing to challenge the non-existent mandate in court in the first place:

The majority overlooks what will happen if the individual plaintiffs fail to purchase insurance: absolutely nothing.

The states’ argument that they have standing is equally weak. The majority accepts the claim that forced compliance with the mandate causes them to spend additional funds covering state employees who are forced to purchase insurance. But as Judge King explained:

The state plaintiffs provided no evidence at all, never mind conclusive evidence, to support the dubious notion that even a single state employee enrolled in one of state plaintiffs’ health insurance programs solely because of the unenforceable coverage requirement

Similarly, the dissent points out that the state plaintiffs presented “no evidence” that the mandate has forced people into Medicaid, thereby costing the state money.

Judge King also showed that even if you accept that the plaintiffs have standing and that the zero-penalty mandate should be struck down, asking whether the rest of the ACA is severable is truly bizarre:

[The majority] feels bound to ask whether Congress would want the rest of the Affordable Care Act to remain in force now that the coverage requirement is unenforceable. Answering that question should be easy, since Congress removed the coverage requirement’s only enforcement mechanism but left the rest of the Affordable Care Act in place. It is difficult to imagine a plainer indication that Congress considered the coverage requirement entirely dispensable and, hence, severable.

That should end the inquiry: Congress made its intention clear. But as the dissent noted, that did not sway the majority:

[T]he majority is unwilling to resolve the severability issue. Instead, it merely identifies serious flaws in the district court’s analysis and remands for a do-over, which will unnecessarily prolong this litigation and the concomitant uncertainty over the future of the healthcare sector.

This is a travesty of a decision, made possible by a Trump judge, Kurt Engelhardt.


ACA, Affordable Care Act, Confirmed Judges Confirmed Fears, Fifth Circuit Court of Appeals, Kurt Engelhardt, Lower Federal Courts