Idiocy in Print


Nicholas Bagley, The latest ACA ruling is raw judicial activism and impossible to defend

Professor Bagley of the University of Michigan Law School has read the opinion, so you and I don’t have to. He takes 19 paragraphs to summarize a 55-page opinion. Attempting to boil down the 19 paragraphs into a few sentences would not be a useful exercise. So please read it yourself, if interested.

The good professor sums it up as “idiocy in print.”

To like effect see An Obamacare Case So Wrong It Has Provoked a Bipartisan Outcry, by two other law professors who don’t generally agree with each other.  (Thanks to Vasari for this one.)

Also helpful is The Texas ruling against Obamacare is a boon to Medicare-for-all by Ezra Klein, who always has something intelligent to say when he puts fingers to computer.

And, two hours ago, Politico posted a piece raising the only important issue raised by the case, not whether it is sensible, not whether it will kill people, but, rather, whether it is good for Republicans.

So, Here’s a Question

There are three things you can ask a court to do for you. One, you can ask the judge to award you money damages. Two, you can ask for an injunction, which is a court order that the defendant must do things A, B, and C, and/or that the defendant is forbidden to do things X, Y, and Z. Three, you can ask for a declaratory judgment—a declaration of your legal rights, or lack thereof. Declaratory judgments, for example, are often used in patent cases, where one side wants to know what it can get away with doing before it infringes the other guy’s patent.

Here, the judge did thing three, issuing a declaratory judgment that the entire Affordable Care Act, every jot and tittle of it, is invalid. (I didn’t read the opinion, but I did steal a glance at the very last paragraph, and that’s what it says.)

The ACA itself—just the statute—is 906 pages long. The regulations promulgated under the ACA by the Department of Health and Human Services and other agencies run to roughly 20,000 pages.

Unless and until Judge Connor’s decision is overruled, this enormous body of law governing our health care system is arguably null and void in its entirety. If the government tries to sue anyone for violation of something on page 13,926, presumably the defendant will argue that the legal doctrine of collateral estoppel prevents the government from assuming the validity of the regulation it is trying to enforce.

Isn’t there a risk, therefore, that our entire health care system will come crashing down around our heads?

Enjoy your evening.