12/18/2018—Today, Paul Krugman published a column today attacking Judge Reed O’Connor’s decision not to sever the Affordable Care Act as “partisan.” This of course is precisely the same attack that was made by President Trump against the decision by District Judge Jon S. Tigar striking down the government’s asylum rules. Chief Justice Roberts responded to that attack by saying that there are not Obama Judges or Trump judges.
There is not even room here for a rule of law. Judge O’Connor may be wrong—-most legal observers believe he should have severed the law—-but there was certainly an argument for honest disagreement. Obamacare was always described as a carefully constructed whole, in which all the parts had to work together. No one thought a simple command that insurance companies refrain from raising rates for preexisting conditions would work without a lot of healthy people buying insurance. Hence the role of the mandate.
This changed when Republicans in Congress repealed the penalty for noncompliance. However, many people obey laws and there was still a command to buy insurance. That command was struck down in a perfectly reasonable decision by Judge O’Connor, given the decision by the US Supreme Court upholding the mandate only because there was a tax connected to it. (A decision I still regard as wrong, but hardly partisan).
The law without the mandate never made any sense. It is still limping along, but the decision not to sever is absolutely defensible.
I don’t believe we should leap to the conclusion that judges are partisan. What they are is ideological, which can lead to different results, but rarely do they vote Party. Bush v. Gore was the horrible exception.