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Separation of Powers

Fifth Circuit Issues Administrative Stay Blocking District Court Decision Striking Down Obamacare Preventive Care Insurance Mandates

The stay is only temporary, and could be quickly lifted. But it's still a negative sign for the plaintiffs in the case.


Earlier today, the US Court of Appeals for the Fifth Circuit issued an administrative stay blocking implementation of federal district Judge Reed O'Connor's ruling in Braidwood Management, Inc. v. Becerra. Judge O'Connor had invalidated some key Affordable Care Act regulations that require insurance plans to cover various types of preventive care without any cost-sharing by patients.

An administrative stay is just a temporary ruling freezing the status quo until an appellate court has a chance to more fully consider arguments for expedited relief. Still, such stays can last for months, though sometimes they are quickly lifted. The decision to issue one is at least a modest sign that appellate judges view the lower court ruling with skepticism. The Fifth Circuit panel that hears the case on the merits will ultimately decide whether or not to grant a more permanent stay pending appeal. That panel will have a different membership from the motions panel that granted the administrative stay. Still, it may be worth noting that the motions panel included two conservative judges (Clement and Southwick) and one liberal (Higginson).

I wrote about the district court ruling and the issues at stake in the case in more detail here. As I noted in that post, Judge O'Connor is the same judge who wrote a truly awful decision in the last major Obamacare case (in which a group of red states tried to bring down the entire ACA by claiming that it couldn't be severed from the now-unconstitutional individual health insurance mandate). On appeal, the Fifth Circuit essentially ordered him to go back to the drawing board; but O'Connor never got a chance to try, because the Supreme Court took the case and definitively rejected it based on lack of standing. While this history doesn't inspire confidence in the trial judge, the issues involved in this case (mostly related to separation of powers and the Appointments Clause), are very different from those in California v. Texas, and I think O'Connor wrote a far more defensible opinion this time around. I'm not sure he got the issues entirely right; but at least he's not obviously wrong, as he was about the severability issue in the previous case.

Today's Fifth Circuit stay suggests that appellate judges may have a more negative assessment of Judge O'Connor's handiwork than I do. We will know more once the merits panel begins to make rulings of its own.