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.

Comments

[Sam Bankman-Fried]

If Blackman were to ever meet O’Connor he would go whole hog on that MOTHERFUcker! He would put his dick and balls in his mouth until he splooged in his mouth and then he would swallow the semen and pray to Jesus to for a miracle that would make him pregnant with his baby—and they would name him Jefferson Davis O’Connor-Whiteman. So adorable!!

[Brett Bellmore]

"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)."

I seem to recall that the ACA deliberately omited a severability clause, (Normal boilerplate in drafting laws.) as a deliberate decision to play a game of chicken with the Court: "Either uphold the entire thing, or strike it all down, we dare you!" People were talking about that decision at the time it was enacted.

[ReaderY]

Unless I work for Brett Bellmore, he will take $0 from me. That’s slavery! Forcing me to work for him is a crime. And he is definitely forcing me to work for him. Since a $0 public penalty results in an unconstitutional coercive mandate, a $0 private penalty is also coercive force.

He is using coercion to force me to work for him.

Slaver! Throw Brett in jail!

[Brett Bellmore]

It's not that tough to construct situations where the mandate potentially has effect even with the penalty set to zero. A criminal on parole, a member of the bar, there are people who have an affirmative obligation, with its own penalties attached, to comply with all applicable laws.

[Sarcastr0]

Then have that case/controversy come up.

You're discarding baseline jurisprudence to push your ideology.

Some formalist you.

[Brett Bellmore]

Nope. I'm pointing out that the ACA was deliberately drafted without a severability clause, to make the Supreme court afraid to strike it down, and it worked, Roberts blinked.

And in saying that the mandate hasn't been rendered legally void by having the penalty set to zero, I'm certainly not saying you wouldn't need to find a plaintiff who was properly situated to raise that issue. Just saying it's such a plaintiff isn't categorically impossible to find, or perhaps create.

[Dilan Esper]

Just because something doesn't have a severability clause doesn't mean that an undemocratic court must destroy a democratically enacted health care program that helps tens of millions of Americans, potentially leaving them without health care, if one part of the law is invalid.

The law is not an ass. And courts should not listen to nihilistic douchebags.

[Brett Bellmore]

No, the absence of a severability clause doesn't imply that the court has to strike it down. If a constitutional law lacks a severability clause, that's irrelevant, as there's nothing to sever, it's constitutional.

But when Congress passes an unconstitutional law, the fact that there are people who benefit from it, in addition to the people who were harmed, should play no role in the legal analysis. None at all.

And, make no mistake, you can appeal all you like to the people who benefited from the ACA, plenty of people were hurt by it, too. Before the ACA, I was diagnosed with two, count em', two cancers at once. Aside from a plaintive note from my insurer asking if maybe I had another insurance policy they didn't know of, they paid for the treatment, which cost almost as much as the house I live in today.

After the ACA? I have much more expensive insurance, with a co-pay that would bankrupt me if that happened again. I'm not alone in this, MOST people watched their insurance get worse and more expensive, that's HOW the benefits were paid for, it was a zero sum transaction. Congress ordered insurance companies to implement an off-budget welfare program as a condition of being permitted to continue in business.

You're just proposing a "but it was a good idea!" defense for unconstitutional laws. Well, screw that. "Let the Constitution be upheld though the heavens should fall." should be the Supreme court's motto.

[Brett Bellmore]

Let's be clear about the real horrors of the ACA.

It is an entitlement program, implemented off budget by forcing private companies to do the work, uncompensated, as a condition of being permitted to stay in business.

It's no different than if Congress passed a law stating that grocery stores had to sell groceries to the poor at below cost as a condition of doing business. Or told plumbers that they had to fix the toilets of poor people gratis in order to be allowed to practice their trade.

Naturally, forcing a private company to provide uncompensated service to some people, requires them to over-charge other people. Those are the people the ACA harmed, who you want to omit from consideration.

The mandate was intended to prevent people who suddenly found that their insurance was much worse, and much more expensive, from deciding to go without insurance rather than over-pay for it. That's why it was included in the bill, because they KNEW the bill would make many people worse off, and they wanted to force them to buy the insurance anyway.

Either of these legislative novelties by itself would be reason enough to strike that abomination down.

[Sam Bankman-Fried]

I lament our country sacrificing 7000 of our best and brightest while flushing $5 trillion down the toilet to slaughter hundreds of thousands of innocent Muslims…you lament some Americans having access to medical care?? So sadz. 🙁

[Brett Bellmore]

The thing is, "Sam", it's possible to lament both.

And, to be clear, the abomination here is that instead of openly enacting an on budget entitlement program, they did it stealth by forcing a private industry to do it for them as a condition of doing business.

Yeah, it was bad policy, but the WAY they did it was the real abomination, legally speaking.

[Dilan Esper]

There's no reason to lament both.

You care more about abstract principles of governance that everyone else disagrees with you about than you care about either (1) the health care of millions of Americans or (2) the principle of majority rule. That says a lot about you and nothing about what the correct court decision should be.

[Brett Bellmore]

Oh, you really think everybody disagrees with me about that? You think the Republicans ran on repealing Obamacare because everybody thought it was the greatest thing since sliced bread? You think everybody with affordable health insurance was thinking, "Darn, I sure wish my premiums would go up and my coverage was worse! It really sucks not having a co-pay!"?

Your guiding principle of constitutional interpretation is, "Fuck the rule of law, if I think it's a good idea, it must be constitutional." Otherwise, what the hell would whether it helps some people have to do with it being constitutional? The government could seize the property of half the population and just gift it to the other half, and that would benefit about 150 million people, after all. Would that make it constitutional?

[Purple Martin]

Let’s be clear about the real horrors of the ACA.

Brett's past, present, future, and indeed only thought about the ACA.

[Mr. Bumble]

...and again thanks to CJ John Roberts for the gift that keeps on giving.

[Brett Bellmore]

Yup, they dared him to strike it down, and he didn't just blink, he glued his eyelids shut. Declaring the penalty a tax even though Congress specifically called it a "penalty" in the text of the law, just to uphold it. That was embarrassing!

[ReaderY]

Was Bailey v. Drexel Furniture, the 1922 case where Congress had imposed a “tax” on using child labor and the Supreme Court found it was really a penalty, also an embarassment?

When determining what is and is not within the scope of the taxing power, is it embarassment to apply the Drexel Furniture test only in one direction and not the other?

What was so embarassing about Drexel Furniture? Congress had very clearly called it a tax. Why exactly was it such an embarassment that the Drexel Furniture Court didn’t just blink but glued its eyes shut? It too refused to take the statute’s plain words at face value. Just to strike it down!

https://supreme.justia.com/cases/federal/us/259/20/

[Brett Bellmore]

You are familiar with the concept of an admission against interest, right? And understand why they're given more credit than ordinary statements?

The courts shouldn't categorically refuse to notice when Congress (unconstitutionally!) imposes a penalty, and just calls it a "tax" in order to try to get away with it. Congress occasionally lies, and the courts are not obligated to pretend otherwise.

But when Congress imposes a penalty, and openly admits that's what they're doing, the courts absolutely should take that claim seriously, and rule accordingly. Because calling it a penalty in the ACA was an admission against interest, Congress doesn't HAVE the authority to impose penalties in that manner, whether or not it decides to have the IRS do the work of collecting them.

[ReaderY]

Drexel Furniture doesn’t concern itself with admissions. There is a test for what is and isn’t a “tax” within the meaning of the Taxing and Spending Clause, and that test doesn’t depend on what Congress calls it. The distinction you are making is nowhere hinted at in Drexel Furniture.

You make a rational argument that it might have been reasonable to limit Drexel’s holding. This is far less than your initial claim. Your initial claim was that deciding things this way had no basis at all. Your current claim that Drexel could or should have been limited, right or wrong, hardly makes applying it as-is preposterous.

Also, why would it be against Congress’ interests to call it a penalty? Many of its members had promised their constitutents not to raise taxes. An obvious way to accomplish this is simply to define “tax” as narrowly as you can. Why would relabeling things that are taxes for constitutional purpose “penalties” for political purpose be in any way against Congress’ imterests? What makes it in any way some sort of “admission”? One could argue its a strategem to deceive constitutents