ACA remains in place while appeal process continues

A group of attorneys general led by California Attorney General Xavier Becerra have taken up the legal effort to appeal Judge O’Conner’s ruling striking down Obamacare.

The decision by U.S. District Court Judge Reed O’Conner to strike down the Affordable Care Act as “unconstitutional” in December threw large swathes of the healthcare industry into disarray as stakeholders sought to predict impact of the decision as well as its near-inevitable appeal.

In a followup order released Sunday, O’Conner certified his previous ruling and wrote that the statute will stay in effect while the appeals process continues because “many everyday Americans would otherwise face great uncertainty.”

The judge’s stay on the judgement mean that it’s likely that the ACA will remain in effect until the case is appealed up to the Supreme Court, which could mark the third time the high court will take up the statute.
In two previous decisions in 2012 and 2015, the court upheld the law.

This most recent lawsuit was filed by a number of state attorney generals who made the complicated legal claim that since last year’s tax bill removed the financial penalties for the individual mandate – and that the mandate was previously considered a tax – the provision was made unconstitutional.

A group of pro-ACA attorneys general led by California Attorney General Xavier Becerra have taken up the legal effort to appeal Judge O’Conner’s ruling. The next stop for the case is the 5th U.S. Circuit Court of Appeals.

O’Conner’s final partial judgement further details his legal thinking around his decision and expressed support that appellate judges would agree with his logic.

“If the judicial power encompasses ignoring unambiguous enacted text—the text citizens read to know what their representatives have done—to approximate what a judge believes Congress meant to do, but did not, then policymaking lies in the hands of unelected judges and Congress may transfer politically unwinnable issues to the bench,” O’Connor wrote. “This the Constitution does not allow. This the Supreme Court does not allow.

Somewhat ironically, O’Conner’s decision to strike down the entire Affordable Care Act due to his opinion that the individual mandate to buy insurance is unconstitutional and inextricable to the rest of the statute has received criticism from both conservative and liberal legal scholars who argue that the decision smacks of the kind of judicial activism that he has previously criticized.

“So nothing changes for the time being. And nothing should change. The legal arguments in previous rounds of litigation over the ACA may have been weak, but they were not frivolous,” wrote University of Michigan law professor Nicholas Bagley in a Washington Post op-ed.

“This case is different; it’s an exercise of raw judicial activism. Don’t for a moment mistake it for the rule of law.”

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