An attempt by the state of Maryland to get a federal judge to uphold the constitutionality of the Affordable Care Act (“Obamacare”), in order to offset another federal judge’s earlier decision to strike down the entire law, faltered on Friday. The new decision by U.S. District Judge Ellen L. Hollander of Baltimore found that Maryland’s lawsuit was premature; however, it left open a chance to revive the case later.
While the two judges’ decisions were very different, neither disturbs the current factual situation – that is, the Trump Administration has promised to continue to enforce all parts of the ACA while its validity is explored in the courts. It probably will be up to the Supreme Court to decide the law’s ultimate legal fate.
Judge Hollander, in the Maryland case, decided nothing about the ACA’s constitutionality, declaring only that the state had not shown that it had a legal right to file the lawsuit at this time (that is, it lacked “standing” to sue).
Her ruling was in complete contrast to a ruling in December by a federal judge in Fort Worth, Texas, that no part of the law is valid in the wake of a change that Congress made in the law in late 2017. Congress took away the financial penalty that millions of Americans without health insurance had to pay if they did not obtain such insurance. (The penalty became zero at the first of this month.)
According to the Texas judge, the penalty’s end undercut the ACA’s mandate to buy insurance, and that mandate was such a key part of the overall health insurance reform that no part of it could survive constitutionally without it.
The state of Maryland was not involved in the case in Texas federal court, which pitted one group of 20 states opposed to ACA against 16 other states and Washington, D.C., in favor of the law. Instead, Maryland filed its own lawsuit, aiming for a ruling that Congress’s change in the law did nothing to undermine the validity of all of the ACA, other than the zeroed-out penalty for failure to obtain insurance.
As originally begun last September, the Maryland case sought a formal court declaration that all of the ACA was constitutional and that it remained enforceable even without the financial penalty for failure to become insured. As the case actually developed, it turned into a claim that the Trump Administration was going to great lengths to undermine the actual operation of the law, and was threatening to simply stop enforcing any part of the law, with the result that Maryland and its citizens would be harmed by loss of the law’s reforms and promises.
That claim depended in part upon repeated statements by President Trump, on Twitter and in public speeches and statements, assailing the law as a total failure.
While Judge Hollander conceded that the President had shown a “profound disdain” for the ACA, she concluded that the state had not proved “a substantial or certainly impending risk” that the Administration would stop enforcing the law.
Given that the government had a duty to enforce the law, the judge wrote, the state had to come forth with allegations that the Administration would “flout the law” by not enforcing it. The state had failed to do that. “Neither the President’s zealous attempts to repeal the statute nor his derisive comments about it, support an inference that he will fail to enforce the law.”
The judge noted that, after the Texas judge had ruled that all of the ACA was unconstitutional, the Administration supported putting that ruling on hold while the decision was appealed to higher courts and vowed to continue carrying out all of the law in the meantime.
The judge summed up: “In effect, the state [of Maryland] proclaims that the sky is falling. But, falling acorns, even several of them, do not amount to a falling sky….The state’s suit is tantamount to a request for an advisory opinion” – something that the federal courts do not have the power to issue.
Judge Hollander stressed that she was dismissing the state case “without prejudice,” meaning that it could renew its claim if the facts changed and the Administration actually did stop enforcing all or any part of the law. State Attorney General Brian Frosh vowed in a public statement to reopen the case if the President broke the promise to continue enforcement or the Texas court ruling against the ACA was put into actual effect, endangering the law.
In a separate part of Judge Hollander’s ruling, she rejected the state’s attempt to use this lawsuit as a way to challenge the legitimacy of President Trump’s appointment of Matthew Whitaker as the acting U.S. attorney general. The Supreme Court had recently done the same in a separate case before the Justices.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
