Opinion | What Lawsuit to Gut Obamacare? Oh, That One

Whether he meant to or not, a federal judge in Texas helped save Republican candidates from themselves this election.

On Sept. 5, just as the Senate hearings for Brett Kavanaugh grabbed the nation’s attention, Judge Reed O’Connor, of the United States District Court in Fort Worth, heard oral arguments in a multistate, Republican-led lawsuit to destroy the Affordable Care Act, including key provisions aimed at protecting coverage for patients with pre-existing conditions. If the judge finds the states’ position persuasive — and he has given some indications in hearings that he does — he can invalidate the whole law.

With Republican candidates throughout the country hailing the need to protect coverage for pre-existing conditions and promising to do so if elected, the lawsuit was a linchpin of Democrats’ efforts to denounce Republican hypocrisy and deception.

But to the surprise of many, two months after that hearing, Judge O’Connor has yet to rule.

When the court challenge was announced in February, Ken Paxton, the Texas attorney general, made clear that this legal ploy was an end run around lawmaking.

“We hope to effectively repeal Obamacare,” he said, “which will then give President Trump and Congress an opportunity to replace that failed experiment with a plan that ensures Texans and all Americans have better choices for health coverage at more affordable prices.” (The suit argues that when the Republican tax bill eliminated penalties for violating the A.C.A.’s individual mandate to buy insurance, it ended the constitutional rationale by which the Supreme Court had approved the law — that it was based on Congress’s right to tax.)

Among the Republican signatories to the lawsuit: Josh Hawley, the Missouri attorney general who challenged Claire McCaskill for her Senate seat while promising voters to protect coverage for pre-existing conditions; Republican officials from Wisconsin, where Gov. Scott Walker ran for re-election, and Georgia, where Secretary of State Brian Kemp ran for governor, making similar vows; and Pam Bondi, the Florida attorney general and close ally of Gov. Rick Scott, another Senate hopeful running ads saying pre-existing conditions should be covered.

Filing a request in April for a preliminary injunction — as in, “This is an emergency, please rule as soon as possible” — the plaintiffs were in a hurry to get the job done when they asked Judge O’Connor to blow up Obamacare. They admonished him in their filing that “the sooner an order issues enjoining the A.C.A., the better, both so that all states and individuals can prepare to operate and live without the A.C.A.”

This is not the first time opponents of Obama-era policies have asked Judge O’Connor to do their bidding. In 2016, they did it twice — first with a lawsuit challenging the legality of federal school guidance for accommodating transgender students and later with a suit calling for the invalidation of regulations applying the Affordable Care Act’s various anti-discrimination provisions. Judge O’Connor agreed that both of those cases required swift judicial intervention: After hearing oral arguments in each, it took him nine and 11 days, respectively, to issue nationwide orders prohibiting the Obama administration from taking any further action that might cause what the law calls “irreparable harm” to the plaintiffs.

Judge O’Connor has expressed no urgency this time, on an issue that was central to the midterm campaigns.

When the Trump administration startled even conservative legal experts by falling in line with the Texas-led lawsuit and declining to defend an act of Congress before Judge O’Connor, it gave the judge a rationale to slow down the high-stakes dispute. It was, administration officials argued, better to wait until after the open-enrollment period, which happens to come after Election Day.

So as Americans cast their ballots on Tuesday, Republicans avoided unwanted attention to legal action that put the lie to their promise of legally protecting coverage for pre-existing conditions.

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