On Friday, Judge Reed O’Connor of the Federal District Court in Fort Worth found the Affordable Care Act to be unconstitutional. This puts an estimated 133 million Americans with pre-existing conditions at risk of losing their insurance coverage. Judge Reed was appointed by George W. Bush. It will now be up to the Fifth Circuit Court of Appeals to affirm or reverse the decision. The Fifth Circuit is generally regarded as one of the most conservative circuits in the country. After the Fifth Circuit rules, the case will be ripe for the U.S. Supreme Court. The Court has the option of refusing to hear the case. Experts envision this case to focus the issue of health care as a top priority for voters in the 2020 election. Bloomberg reports that “health care ranked as the most important issue to Americans by nearly a two-to-one margin, and those who cited it preferred Democrats to Republicans by a striking 52-point margin.” While judges are supposed rule based on the law without regard to political considerations, this ruling may damage the ability for Republicans to win elections in 2020. The prospect of over a hundred million voters losing or being in fear of losing health care coverage would be devastating to the Republicans if voters blame Republicans for the loss of health care. (It should be noted that the plaintiffs in this case were a group of Republican Attorneys General.) The Trump administration refused to defend the Affordable Care Act. Some Republican leaders are deeply concerned that they will be facing a voter backlash. What does this mean to judges? Federal judges are given lifetime appointments so they can make difficult decisions without fear of political reprisals. There is no way to tell what will happen when the case goes up. Many conservative legal scholars have weighed in with skepticism that the ruling will survive appellate scrutiny; they speculate that if it gets reversed in the Fifth Circuit, the Supreme Court will decline to hear it. In the meantime, the decision is stayed until the Appellate Court rules. This may be a lot to do over nothing or it may become one of the most significant legal decisions of the Trump presidency. Regardless of the outcome years from now, this case could be the catalyst for bipartisan solutions to problems that lack party bias. Certainly, the needs of 133 million Americans deserves better.
Stop
This week a number of court filings have raised the temperature of the Mueller investigation. While President Trump tweeted that the filings have cleared him, most knowledgeable legal observers came to the opposite conclusion. As unindicted Individual 1, Trump seems immersed in improper conduct. While he tries to deflect the scrutiny, the evidence continues to mount. Regardless of the constant haranguing by the president and his supporters, the only insight into the investigation by the special prosecutor–or from related cases by different prosecutors’ offices–comes from documents filed in court. Many of the documents available for public review are heavily redacted but they are informative. In January, the Democrats will control the House. There continue to be cries for impeachment. An impeachment begins in the House but is voted on by the Senate, which is currently controlled by Republicans. A number of Republicans would have to abandon their party to vote for impeachment or the impeachment would fail. At this point, people need to stop. They need to stop calling for impeachment. They need to allow the investigation to run its course. After the investigation is concluded, when the evidence is known, that would be the time to evaluate what should occur. Impeachment should not be partisan nor should it be instigated unless there is overwhelming evidence of a serious crime or series of crimes. The crime or crimes must significant. The evidence must be more than the testimony of cooperating individuals seeking to reduce their own criminal liability. There must be irrefutable evidence. Hard evidence like emails, captured conversations, banking receipts or other tamper proof evidence must be available to test the credibility of any witness testimony. When Nixon was impeached it was Republicans who compelled him to step down after seeing overwhelming evidence of guilt. Today it should not be a Democratic impeachment. It should not be a partisan process. If the evidence is produced to prove that impeachment is appropriate, Republicans need to lead the charge. If such evidence is never produced, there should be no impeachment. Everyone offering their opinions now, speculating about what the Special Prosecutor has, needs to stop. The investigation must conclude on its own schedule, unabated and without interference. Now more than ever, we need to embrace the concepts of due process and rule of law.