Ted Frank, a lawyer at the Competitive Enterprise Institute who is critical of the ACA, called the decision “embarrassingly bad” because “you’re twisting yourself into knots” to reach a particular conclusion.
Over the past two years, Frank said, he and other conservative lawyers have complained when district court judges did similar intellectual gymnastics to attack Trump administration initiatives. “It’s not appropriate in the other direction, either,” he said.
Nicholas Bagley, a University of Michigan law professor, predicted “a long slog” while the courts wrestle with O’Connor’s decision.
“I think this case is frivolous, and I think the judge’s opinion is about as naked a piece of judicial activism as I have ever seen; I don’t even think it’s close,” said Bagley, who supports the ACA. “Like any lawsuit, you should take it seriously, but I don’t think this is an imminent or mortal threat to the Affordable Care Act.”
Since I only studied law at the feet of Jack McCoy, I defer to the real attorneys, but in my humble opinion, Judge O’Connor arrived at his ruling beforehand and then went on a turd-hunt to find something in the law and its history to support it. He did so when Congress reduced the penalty for not buying health insurance to zero.
This ruling will undoubtedly be appealed just in time for the 2020 election and pitting the GOP and their candidate who crowed on Twitter about the wonderfulness of the ruling against the 20 million people whose health insurance and lives are placed in jeopardy if, by some insane logic, (hi, Clarence Thomas), it is allowed to stand by the Supreme Court.
I can’t wait to see how they’re going to talk their way out of this one.