Legal Commentators Nearly Pull A Muscle Condemning Judge’s Affordable Care Act Decision

By now we’ve all come to the sobering realization that Friday night’s decision from Judge Reed O’Connor, district court judge in the Northern District of Texas, declaring the Affordable Care Care unconstitutional was not a fever dream. Before we move onto the round of appeals that are sure to follow such a controversial decision, it is fun to see what the legal commentators are saying about Judge O’Connor’s claim to fame.

The critics are piling on O’Connor’s decision — both liberals and conservatives — calling it a power grab that represents an insult to the rule of law. Don’t believe me? Let’s take a look at some of the more eloquent clap backs that have been thrown Judge O’Connor’s way since Friday night.

Jonathan Adler, Case Western Reserve University School of Law, and Abbe Gluck, Yale Law School, in the New York Times said:

A ruling this consequential had better be based on rock-solid legal argument. Instead, the opinion by Judge Reed O’Connor is an exercise of raw judicial power, unmoored from the relevant doctrines concerning when judges may strike down a whole law because of a single alleged legal infirmity buried within.

Laurence Tribe, Harvard Law School, told Salon:

Judge O’Connor’s opinion was legally indefensible from start to finish. I rarely reach this conclusion, but only a results-driven policy agenda could begin to explain his absurd conclusion that Congress’s 2017 decision to zero out the penalty for not buying the insurance mandated by the ACA while retaining the rest of the ACA somehow rendered the entire ACA unconstitutional. People who castigate judges as ‘activists’ whenever they reach liberal results had better step up to the plate and join those across the spectrum who are condemning this latest ruling as way outside the legal ballpark.

John Halloran, Lewis University, via Twitter:

It’s worth pointing out that for all the flak that Judge O’Connor is getting for the ACA opinion that the ICWA opinion from earlier this fall is equally embarrassing. The level of judicial incompetence, flawed legal reasoning, and, well, activism on display in both is astounding.

Marty Lederman, Georgetown University Law Center, on Twitter:

Severability’s the least of it—it’s indefensible on the merits, too, because there isn’t any ‘mandate’ to maintain health insurance. Oh, and BTW, O’Connor didn’t enjoin anything, let alone ‘strike down’ the ACA.

Ted Frank, Competitive Enterprise Institute, on Twitter:

Not a fan of ACA or King v. Burwelldecision, and usually a fan of Texas, but this is an embarrassingly bad decision, and if a liberal judge had issued something like it goring a conservative ox, conservatives would be rightly up in arms.

Nicholas Bagley, University of Michigan Law School, said:

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

Philip Klein, executive editor of the Washington Examiner, wrote:

I hate Obamacare so much that it’s possible I’ve written more words criticizing it over the past decade than any person alive. I have supported multiple previous legal efforts against the legislation and its implementation. In the fall of 2012, after the Supreme Court upheld Obamacare, my Halloween costume depicted John Roberts turning into a chicken. If Congress repealed all of Obamacare tomorrow, I’d throw a party. Despite my policy preferences, I’d say the latest decision from U.S. District Court Judge Reed O’Connor of Texas declaring Obamacare unconstitutional is an assault on the rule of law.

It’s really impressive that Judge O’Connor could so powerfully unite the left and the right of the political spectrum. And all in service of telling the jurist he’s an idiot.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).