For the third time, a federal court has delivered a ruling that, if upheld, would leave the Affordable Care Act in tatters. But the opinion Friday night by Judge Reed O’Connor of the Northern District of Texas, in a lawsuit brought by 20 states, has met with a frosty reception from many who cheered earlier judicial assaults on Obamacare.
Law professors on the Volokh Conspiracy — the influential blog (once hosted by The Washington Post) that kindled the near-fatal challenges to the health-care law — blasted O’Connor’s analysis as “implausible” and “badly flawed.” The Wall Street Journal editorial board called it a “blunder,” while the editors of the National Review “deplore” the decision. Commentators on the right were nearly unanimous in their prediction that O’Connor’s opinion would be overturned on appeal.
It’s a stark contrast with the way that many of the same voices greeted the federal court decisions in 2010 and 2011 — later overturned by the Supreme Court on a 5-to-4 vote — that found Obamacare’s individual mandate to be beyond Congress’s constitutional authority. O’Connor’s critics also include onetime cheerleaders for the statutory challenge to Obamacare subsidies that the justices rejected in 2015.
Some see O’Connor’s decision as proof that the courts have become just one more forum for partisan politics. But the reaction on the right to his opinion should partly reassure Americans who had begun to doubt whether precedent and legal logic still count for anything. For while it is disconcerting that a district court judge would sign onto the states’ outlandish argument, equally significant is how so many conservative and libertarian legal thinkers and opinion shapers are refusing to take the bait. Of course, ideology sometimes tips the balance in close and even not-so-close cases. But notwithstanding the polarization of American politics, ideology still has its limits in the law.
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