In ducking its opportunity to rule on the constitutionality of the entire Affordable Care Act, a federal appeals court has done a large favor for President Donald Trump and the Republican Party. But it leaves millions of people in uncertainty and anxiety. It was unnecessary and unethical.

By sending the case back to the district judge in Texas who had ruled against Obamacare, the 5th U.S. Circuit Court of Appeals virtually guaranteed that it won’t reach the Supreme Court in time for a final decision before the November election.

That lets Trump and his party off the hook, inviting them to duck the issue during the campaign, rather than level with the voters on how — or whether — they would replace what the courts might eventually throw out.
Make no mistake: Trump and the Republicans want the court to trash Obamacare, but not in time for the voters to hold it against them in November. And no matter the potentially drastic, even deadly, consequences for everyone who depends on its coverage.

That’s virtually everyone in America, not just the 11.4 million who obtained health insurance through the Obamacare marketplaces or the 13.6 million who were added to the Medicaid rolls in the 36 states and District of Columbia where, unlike Florida, human lives outweigh right-wing ideology.

The Affordable Care Act also guarantees private insurance coverage despite preexisting medical conditions such as diabetes, allows children to remain on parental health plans until they are 26, makes insurance companies return excess profits, forbids them from cancelling policies except for fraud, bars lifetime limits on benefits and requires large employers to offer insurance to their workers.

Trump put the federal government on the side of Florida and 16 other states, all controlled by Republicans, that joined with three individuals suing to have the entire law discarded.


Former Attorney General Pam Bondi, who now works for Trump, put Florida on the wrong side of that litigation. Her successor, Ashley Moody, keeps us there.

Moody owes it to the people to say how much or how little of Obamacare she would have her party replace if the courts eventually overturn it. Everyone running for office next year, from the president to the Congress to the state legislatures should also have their answers at the ready.

Health care topped all other issues in an exit poll of voters in the 2018 midterms, which returned the House to Democratic control, and is second in the current campaign only to Trump’s impeachment.

The Fifth Circuit’s decision is glaring in two respects.

—The trial judge, Reed O. Connor in the Northern District of Texas, had already declared all of Obamacare unconstitutional because Congress repealed the tax charged to people who did not obtain insurance. Upon upholding only that part of his decision, the appeals court sent it back to him to explain his reasoning about the rest. That was unnecessary — an act of judicial laziness if not worse.

—The 2-1 split in the panel illustrated the worsening politicization of the federal judiciary along ideological and partisan lines. The two judges in the majority owe their appointments to Presidents George W. Bush and Trump, and both are or have been members of the Federalist Society, the rigidly right-wing organization that has become the gatekeeper for judicial appointments under Trump.


The dissenter, Senior Judge Carolyn Dineen King, appointed by President Jimmy Carter, rebuked the Texas judge for accepting a case in which there was no real violation of anyone’s rights. Without the tax, she reasoned, the mandate was already unenforceable; Florida and the 16 other plaintiff states had nothing at stake at all. She would have overturned the district court’s order “because none of the plaintiffs have standing to challenge the coverage requirement.

“And although I would not reach the merits on remedial issues, if I did, I would conclude that the coverage requirement is constitutional, albeit unenforceable, and entirely severable from the remainder of the Affordable Care Act.”

Without the tax, she wrote, the law “does not do anything or bind anyone.” What was left of the coverage requirement “does nothing more than require individuals to pay zero dollars to the IRS if they do not purchase health insurance, which is to say it does nothing at all.”

She criticized her colleagues for not rejecting “textbook judicial overreach.”

Congress, she emphasized, had made its intent plain by repealing only the tax, not any of the other elements of the law that have proved popular.

Did some of those voting to repeal the tax have a deeper, sinister motive in mind? Were they trying to expose all of Obamacare to constitutional challenge?


Only they know. What they also should know is that the requirement they repealed has since been credited with saving some 700 lives.

That’s the estimate in a working paper by Treasury Department economists based on mortality rates and on the numbers of people who appeared to have purchased health insurance after the IRS told them they had been fined for not having it. The New York Times reported the story Dec. 10.

Last week, Florida Phoenix reported that an estimated 2,700 Floridians aged 55 to 64 died between 2014 and 2017 on account of Florida’s refusal to extend Medicaid to 500,000 people who are in the coverage gap between eligibility for Medicaid and Obamacare subsidies.

So it bears remembering that human lives are at stake in what might seem to be an arcane legal battle over federal jurisprudence.

Also, ours is the only industrialized democracy that does not regard health care as an inalienable human right.

Editorial by the Sun Sentinel (Fort Lauderdale, Florida)

Visit the Sun Sentinel (Fort Lauderdale, Fla.) at
Distributed by Tribune Content Agency, LLC.

Only subscribers are eligible to post comments. Please subscribe or login first for digital access. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.