Last December, a Republican judge named Reed O’Connor handed down an opinion purporting to strike down the entire Affordable Care Act. The case, Texas v. United States, was brought by several Republican officials who manipulated the process used to assign judges to cases in order to get this case into O’Connor’s courtroom.

O’Connor, a former Republican Capitol Hill staffer, has a history of striking down policies supported by Democrats on highly dubious grounds. His opinion in Texas was no exception.

Nevertheless, on Monday evening, the Trump administration filed a brief letter in the conservative United States Court of Appeals for the Fifth Circuit informing the appeals court that it agrees with O’Connor’s opinion and will file a brief asking the court to repeal Obamacare in its entirety.

As a general rule, the Justice Department has a duty to defend any federal statute challenged in court, regardless of whether the incumbent administration agrees with that statute. The Justice Department will disregard this duty in rare cases, such as when no reasonable arguments can be made in favor of a law. But, in this case, no reasonable argument can be made in favor of O’Connor’s position.


As originally enacted, the Affordable Care Act required most Americans to either carry health insurance or pay slightly higher income taxes. In the 2017 Trump tax law, Congress effectively repealed this requirement by zeroing out the tax penalty for not having insurance.

The premise of O’Connor’s Texas opinion is that, when Congress repealed this one provision of the law, it rendered the rest of Obamacare invalid. O’Connor’s logic is convoluted, but it rests upon two points.

The first point is that the unusual way that Congress repealed the law’s so-called “individual mandate” rendered that mandate unconstitutional. In NFIB v. Sebelius, the Supreme Court upheld the fully operational mandate as a valid exercise of Congress’ power to tax. When Congress zeroed out the mandate, however, it left in place language providing that most Americans “shall” obtain health coverage — even though this language now does absolutely nothing because the consequence for not obtaining insurance is that you have to pay zero dollars.

Nevertheless, O’Connor reasoned that the zeroed-out mandate no longer functions as a tax, and therefore is unconstitutional because it can no longer be upheld as an exercise of Congress’ taxing power.

There are many problems with this argument. Among other things, as the United States House of Representatives argues in a brief defending Obamacare, Congress passes laws that do nothing all the time — one federal law, for example, lays out a set of rules governing how American flags should be treated, but imposes no consequences for violating these rules. These entirely symbolic laws, the House argues, are constitutional because “Congress unquestionably possesses authority to express its views in that non-binding manner.”


But even if O’Connor is right that the impotent mandate is unconstitutional, so what? The mandate does nothing at all. Striking it down means subtracting zero from zero.

But that brings us to the second half of O’Connor’s reasoning.

When a court strikes down part of a broader statute, it often must ask whether other, constitutional provisions of the law must fall along with the unconstitutional provision — an inquiry known as “severability.” Severability is normally a speculative inquiry that asks which hypothetical law Congress would have passed if Congress had known that it lacked the power to enact the invalid provision.

But there’s no need to engage in such speculation in Texas because Congress already answered this question. Congress passed a law that zeroed out the mandate and repealed no other provision of Obamacare. That’s conclusive proof that Congress intended to leave the rest of Obamacare intact.

The Supreme Court, moreover, instructed judges not to cut too deeply into federal laws when they conduct a severability inquiry in Murphy v. National Collegiate Athletic Association. “In order for other . . . provisions to fall,” Murphy held, “it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”

So O’Connor didn’t just mangle the severability inquiry, he defied the explicit command of the Supreme Court of the United States.


Nevertheless, there is a very real risk that the Fifth Circuit will back O’Connor (and DOJ’s) play in this case. Eleven of the appeals court’s sixteen judges are Republicans — and many of them are unusually conservative even for a Republican judge. Five of the Fifth Circuit’s members are Trump judges.

So there is a very real risk that the three-judge panel assigned to hear the Texas case will include at least two judges who share O’Connor’s willingness to place ideology before the law. If that happens, the case will almost certainly be heard by the Supreme Court — where the fate of Obamacare is likely to rest once again in Chief Justice John Roberts’ hands.