5th Circuit Panel Accuses Right-Wing Judge Of ‘Abuse Of Discretion’ In Obamacare Case

WASHINGTON, DC - JUNE 18: Health and Human Services Secretary Xavier Becerra (Photo by Anna Moneymaker/Getty Images)
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While it upheld the crux of a right-wing district judge’s ruling on a major Affordable Care Act case Friday, a panel of judges on the 5th Circuit Court of Appeals accused that district judge of abusing his discretion by letting insurers nationwide stop offering free preventative care. 

The plaintiffs — which include some well-known ACA foes — argued that the U.S. Preventive Services Task Force, or PSTF, is unconstitutional, as its members were not appointed properly. PSTF is a group of experts that makes recommendations for what qualifies as a preventive measure covered by the ACA. 

Judge Reed O’Connor — a Texas district judge who’s becoming increasingly notorious for his willingness to hand down hard-right decisions (and who found the entire ACA to be unconstitutional in 2018, only to be reversed by the Supreme Court 7-2) — unsurprisingly found for the plaintiffs. But he then compounded the injury. Rather than restrict relief to the plaintiffs seeking it, he cancelled out all actions the federal government has taken to implement that part of the law since 2010 and prevented government officials from enforcing the challenged coverage requirements nationwide.

That sparked full-throated objection by the government and a flood of amici, who stressed the critical importance of keeping available services such as cancer screenings and pregnancy care. That outcry, coupled with the growing criticism of this sort of knee-jerk, nationwide relief (a favorite tactic of right-wing judges) from the Supreme Court, led the 5th Circuit panel Friday to severely narrow relief to the plaintiffs before the court. 

“Because we do not find any support for the district court’s decision to vacate all agency actions taken to enforce the Task Force’s recommendations, we also cannot find any support for the district court’s universal (or nationwide) injunction,” the panel wrote. “The parties recognize that such injunctions are not ‘required or even the norm,’ and several justices on the Supreme Court have viewed them with conspicuous skepticism. Scholars and judges from our sister circuits have done the same.” 

The judges also took a shot at O’Connor for his willingness to so readily turn a narrow case into one that, by the government’s lights, affects the 150 million Americans who receive free preventive care. 

“We must therefore conclude that it was an abuse of discretion to enter universal injunctive relief after already providing complete relief to the plaintiffs,” the panel wrote. 

The panel, consisting of two Trump appointees and one Biden one, did agree with O’Connor that the Preventive Services Task Force members are improperly serving, and must be appointed by the President and confirmed by the Senate. 

Still, even a Trump-appointee majority was cognizant enough of how the winds are blowing to smack down universal relief, which has become near-instinctual for a cadre of conservative judges. It’s a pattern that has attracted the attention and alarm of everyone from the Senate to the Judicial Conference to Justice Neil Gorsuch. And the more the practice comes under fire, the likelier that, eventually, something will be done to stop it — shutting down a hugely successful pipeline for right-wing litigants in the process.

Read the ruling here:

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  1. this sort of knee-jerk, nationwide relief (a favorite tactic of right-wing judges)

    The Republican Party does not believe in limited government or less government or small, or tiny, itty bitty, teenie weinee, minute or any kind of government answerable to the people.

  2. Avatar for tpr tpr says:

    the more the practice comes under fire, the likelier that, eventually, something will be done to stop it — shutting down a hugely successful pipeline for right-wing litigants in the process.

    “Nothing stops.” (I forget what movie that line comes from.*) Why would anything stop? There are no penalties. There is effectively zero cost to those who launch these malicious assaults on ordered liberty.

    I guarantee there is a lot more collaboration going on down there between these lunatic Federalist judges and the high-powered Libertarian-minded lawyers who cook up these vehicles.

    You don’t have to visit Singer’s Alaskan Fishing Retreat For Billionaires to spend a bunch of time in private waxing philosophical about how awful it is that society has rules, or how great it would be to have a perfect case to “prove” those rules unworkable, or how delighted you’d be to play the George Eliot to their fraud.

    A huge amount of our political system is based around the honor system: different groups who are formally forbidden from colluding. Their promises to that effect don’t mean squat, and every officer of the court who accepts those promises at face-value is practically an accomplice. See also: super PACs, Senate GOP in impeachment, SCOTUS ethics, McConnell’s dark money machine, the NRA, Fox News and the GOP, the Kochtopus, etc.

    * The quote is from The Shawshank Redemption, at 1h39m20s:

    Dufresne: “I’m done. Everything stops. Get someone else to run your scams.”

    Norton: “Nothing stops. Nothing. Or you will do the hardest time there is. No more protection from the guards. I’ll pull you out of that 1-bunk Hilton and cast you down with the sodomites. You’ll think you’ve been fucked by a train. And the library? Gone. Sealed off, brick by brick. We’ll have us a little book barbecue in the yard. They’ll see the flames for miles. We’ll dance around it like wild injuns. You understand me? Catching my drift? Or am I being obtuse?”

    Fitting that the quote comes from a story about a villain who abuses his power over the criminal justice system.

  3. And this will now likely be used to claim that the argument against Smith’s appointment is valid…

  4. Ah, Judge O’Connor. That brings back . . . nightmares.

  5. And by the way, “abuse of discretion” is the standard of review on appeal. It just means that the judge misapplied the law or there was insufficient evidence to sustain the ruling. The panel is not chiding O’Connor in any way for his bullshit.

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