As a second Trump administration approaches, we’re running out of time to confirm as many federal judges as possible to provide a check on his presidential power and curb his stated policy priorities.
There are 40 federal judicial vacancies and 16 nominations before the Senate right now—as our civil rights hang in the balance, take action now!
You may be scratching your head over the news from late Friday that a federal judge in Texas declared the Affordable Care Act unconstitutional . . . but that the law is still in effect. If you’re confused, you aren’t alone – Monday night a coalition of states led by California asked the judge to confirm that the decision does not relieve the federal government, the states, or anyone else from enforcing the ACA while the case is pending. They also asked for permission to appeal the confusing and terrible decision.
The reason for the confusion is that the Texas federal court declared the so-called “individual mandate” of the ACA unconstitutional, and from that it concluded that the entirety of the ACA is invalid. But, the court did not actually issue an injunction striking down the ACA. What this means is that for now, fortunately, the ACA is still the law of the land.
The Texas decision is reckless and threatens the health and lives of millions of people nationwide. It is also flawed in its legal reasoning and is an extreme example of judicial overreach that should be overturned on appeal.
The ACA includes a requirement that individuals obtain health insurance, a provision known as the “individual mandate” or “individual responsibility provision.” In the 2012 Supreme Court case NFIB v. Sebelius, the Court upheld the individual responsibility provision as constitutional in an opinion by Chief Justice Roberts. A majority of the Court construed the penalty for failing to comply with the individual responsibility provision to be a tax and determined that the individual responsibility provision is a constitutional exercise of Congress’ power to tax. Since then, millions of people nationwide—especially women and critically, women of color—have obtained health coverage thanks to the ACA.
Fast forward to December 2017. As part of tax reform, Congress scrapped the penalty for failing to comply with the individual responsibility provision. But, at the same time, Congress refused to repeal the ACA. In an attempt to use the courts to achieve the repeal rejected by Congress, a coalition of 20 states led by Texas and two individuals filed the lawsuit in the Texas federal court, which is known as a testing ground for extremist legal theories, seeking to invalidate the entirety of the ACA.
In a shocking move, the Trump-Pence administration decided it would not defend the individual responsibility provision or the ACA’s protections for people with pre-existing conditions in the Texas case, leading one senior career Department of Justice lawyer to resign and others to withdraw from the case. To fill the void left by the federal government’s failure to defend, the coalition of states led by California stepped in to protect the ACA.
The court on Friday agreed with the coalition of Texas-led states that the individual responsibility provision is unconstitutional without a penalty. It then held that the individual responsibility provision is so essential to the rest of the ACA that the whole law must get struck down. But the court’s reasoning is flawed: it ignores that Congress specifically intended not to repeal the entirety of the ACA. And it ignores longstanding Supreme Court precedent that requires courts to leave as much of a statute intact as possible if a piece of it is determined to be unlawful. The Texas court instead issued a decision so extreme—and with consequences so dire—that we are confident the court’s shoddy reasoning will be corrected on appeal.
For now, the ACA is still the law of the land. But so much is at stake. The ACA gave us Medicaid expansion, protections for people with pre-existing conditions, the marketplaces, insurance coverage of birth control and other women’s preventive services with no out-of-pocket cost, and the Health Care Rights Law (also known as Section 1557)—the first broad federal protection against sex discrimination in health care. Thanks to the ACA, being a woman is no longer a pre-existing condition. We are watching this case closely and will not go back without a fight.
