Late Friday in Ft. Worth, U.S. District Court Judge Reed O’Connor, an appointee of President George W. Bush, struck down the entire Patient Protection and Affordable Care Act, also known as the ACA or Obamacare. In a 55-page opinion, O’Connor ruled that the law can no longer stand because the individual mandate is unconstitutional.
The law remains in effect, however, and is likely headed immediately to the courthouse on 600 Camp Street in New Orleans, home of the United States Court of Appeals for the Fifth Circuit. Regardless of whether the majority conservative Fifth Circuit affirms O’Connor’s decision, which is not necessarily a fait accompli, the case is likely destined for the United States Supreme Court, which has already affirmed the ACA’s constitutionality in two separate challenges.
If Judge O’Connor’s decision is ultimately upheld, at least 17 million Americans would immediately lose their health insurance. According to the Kaiser Family Foundation, “52 million adults from 18 to 64, or 27 percent of that population, would be rejected for coverage under the practices that were in effect in most states before the Affordable Care Act,” the New York Times reported.
In Louisiana, potentially more than a million people would lose their health insurance. In a statement released late Friday night, Gov. John Bel Edwards lambasted the decision and state Attorney General Jeff Landry.
“Nearly 850,000 Louisianans with a pre-existing health condition face uncertainty and could lose their health insurance as a result of a lawsuit that Attorney General Jeff Landry supported. Even more troubling is that 480,000 working Louisianans on Medicaid expansion could lose their health insurance over this decision,” Gov. Edwards stated. “Being diagnosed with breast cancer or diabetes should not automatically mean that you are denied coverage to protect an insurance company’s profits, and if you put in a full day’s work, you should not be priced out of coverage.”
Edwards vowed to “vigorously pursue legislation” that would protect those could lose their insurance if the decision is upheld.
Notably, although the case decided yesterday was technically initiated by Texas Attorney General Ken Paxton and styled as Texas v. United States of America, the challenge wasn’t merely supported by Jeff Landry; it was really led by him.
In a press release from February announcing the legal challenge, his office boasts the case was the result of the “Landry coalition,” a group of seventeen other Republican attorneys general and two Republican governors.
Recent news reports about Friday’s ruling have credited Paxton of Texas and Wisconsin Attorney General Brad Schimel with spearheading the effort, though this is largely a consequence of a decision by members of the “Landry coalition” to help the two most embattled attorneys general in the country solidify their base in their campaigns for reelection.
Landry was elected President of the National Association of Attorneys General on June 21st, despite being in his first-term in office. He had previously served a single-term in Congress; after his district was consolidated with the now-defunct seventh district, he lost his bid for a second term against long-time incumbent Charles Boustany in 2012.
In November, Ken Paxton, who has been indicted with two first-degree felonies for fraud and one third-degree felony for violating state securities law, won his election; the case against him has been ensnared by delays for three years, and it still remains unclear when exactly the trial will actually occur. Schimel, who earned a reputation as “the worst attorney general in Wisconsin history,” lost his bid for a second term to Democrat Josh Kaul; as a consolation, outgoing Gov. Scott Walker (who was also defeated) appointed Schimel as a circuit judge in Waukesha County.
The decision to file in Texas and not Louisiana or Wisconsin was a strategic one, a practice commonly referred to as forum shopping. In August, I wrote about another challenge against the ACA that Landry had championed, in which he argued that an obscure and completely harmless accounting maneuver, the HIPF, was tantamount to a “deep state” conspiracy. That case was also filed in Texas and was also heard by the same exact judge as the case decided yesterday, Reed O’Connor. In that case, Judge O’Connor also agreed with Landry’s argument, though his opinion did not include any mention of the “deep state.”
Landry has acted as a spokesperson for the lawsuit decided yesterday in numerous media appearances, including a contentious exchange on CNN in late September in which he was forced to acknowledge that he had pursued the case without first working with legislators on a plan to protect those who would lose insurance if he prevailed.
Shortly after the decision was announced Friday night, Landry responded in five-part statement via Twitter:
The only factually correct statement of Landry’s five-part tweet-storm (which was improperly formatted) is the very first sentence.
There is no evidence whatsoever that he has worked with a single member of the state legislature on any proposed legislation, and his decision to pursue this legal challenge was unilaterally made by him, without any consultation at all with state leaders, including Gov. John Bel Edwards, Sec. Rebekah Gee of the Louisiana Department of Health, or any other member of the administration.
Although the Landry Coalition filed suit in February, while state legislators were meeting in the first of what would become three special sessions, of the more than 1,400 bills ultimately filed during the regular session or the hundreds of others filed during the three special sessions, not a single bill contemplated “state-based solutions” for the 480,000 people who rely on Medicaid expansion or guaranteeing coverage for the 850,000 Louisianians with pre-existing conditions who now have insurance.
Legislators were focused on drafting a balanced budget that would reduce the tax burden on citizens by, among other things, maximizing the opportunities available for federal funding. Importantly, because of the ways in which Medicaid expansion funding under the ACA is structured, Louisiana actually saves money; the state’s match, which is currently less than 5%, is paid through provider fees.
Landry went rogue.
If the decision on Friday stands, he can claim credit for ending health insurance for 480,000 Louisianians covered because of Medicaid expansion and 850,000 Louisianians with pre-existing conditions who are now covered, immediately saddling the state with untold billions of dollars in debt, and leading the coalition that, according to the President of the Federation of American Hospitals, would result in “a devastating impact on the patients we serve and the nation’s health-care system as a whole.”
While it may have been politically convenient in Louisiana to disparage anything and everything undertaken by the Obama administration when Landry was elected three years ago, Medicaid expansion, which has been subsequently implemented under Gov. Edwards, and protections for people with preexisting conditions are both resoundingly popular policies in Louisiana.
When Landry faces reelection next year, he will confront an electorate that includes over a million Louisianians who either lost their insurance or could have lost their insurance as a consequence of his actions as their state attorney general. There are approximately 230,000 more people with preexisting conditions who gained access to insurance coverage in Louisiana because of the ACA than the total number of votes Jeff Landry received when he won in 2015.
Because of that- and even regardless of the ultimate ruling, Landry, who decided to forgo challenging Gov. Edwards and run for reelection instead, should now be considered the most vulnerable incumbent on the ballot in 2019. He has not only ensured that more than a million citizens now have a personal reason to vote against him; he has all but guaranteed that his reelection campaign will attract national attention and opposition. And if his appearance on CNN is indicative of anything, it’s that the General isn’t skilled in battle.
There is one more aspect to this that deserves emphasis and attention.
While Landry shoulders the bulk of the blame for involving Louisiana in this litigation, he is not the only elected official in the state who should be required to answer for it. The only reason he even had an opportunity to form the Landry Coalition and pursue a lawsuit that would be heard in Judge Reed O’Connor’s courtroom is because, in 2017, congressional Republicans, in both the House and the Senate, struck out the fee associated with the individual mandate when they passed a massive tax cut that almost exclusively applied to the wealthy and for large corporations. The bill, which President Trump enthusiastically signed into law, is also expected to increase the national debt by at least $1.8 trillion over the next decade, according to the nonpartisan Congressional Budget Office.
By eliminating that fee, Republicans were deliberately, albeit quietly, attempting to invalidate the justification employed by Chief Justice John Roberts in his majority opinion first upholding the constitutionality of the Affordable Care Act: That it was a proper exercise of congressional authority under the Taxing and Spending Clause. (The easiest route would have been through the Commerce Clause, which would have put an end to the tortured argument that health insurance is somehow not subject to interstate commercial activity. Notably, though, in Chief Justice Roberts’s opinion, he decided the Commerce Clause did not apply because, at the time Congress passed the ACA, the “national marketplace” didn’t exist. Nine years after the bill’s passage and seven years after Roberts’s opinion, it will be difficult, if not impossible, to make the same argument about the existence of the “national marketplace”).
Regardless, when Jeff Landry states, “Since day one, this case has always been about the Constitution and federal overreach,” he is being disingenuous, because, even if one agrees with Judge O’Connor’s decision, the only reason he struck down the ACA is because Republicans snuck in a provision to zero out a fee as a way of unraveling the entire law.
This, of course, begs the question: If more than a million Louisianians lose their health insurance as a result of Congress zeroing out a fee that Chief Justice Roberts used to justify the constitutionality of the bill, which members of Congress from Louisiana voted to support that effort?
The answer is: All but one of them, Cedric Richmond, the delegation’s lone Democrat.
Sen. John Neely Kennedy voted for the provision, as did Sen. Bill Cassidy. Rep. Garret Graves, Rep. Steve Scalise, Rep. Mike Johnson, and Rep. Clay Higgins voted for it too.
And so did Rep. Ralph Abraham, who now wants to become the state’s next governor. There’s a good chance that, when all of the numbers are crunched, he will discover that he supported an effort that could eliminate health insurance for more people in Louisiana than the entire number of people who voted in Louisiana in 2015.
Welcome to the Landry Coalition, Congressman Abraham.
What’s the expression? Oh yeah, break a leg! (Don’t worry: I’m just being facetious. You wouldn’t have to worry if you did, though. You have great health insurance).