Opinion | Trump Is Hiding Behind Judges to Destroy Obamacare

The case turns on the 2017 Tax Cuts and Jobs Act. There, after Congress decided it could not repeal the A.C.A., it did get rid of the penalty that had been associated with the failure to comply with the law’s insurance-purchase requirement. A group of Republican-led states sued, arguing that the insurance-purchase requirement was unconstitutional without the penalty. In the 2012 Supreme Court challenge to the A.C.A., the court held the requirement was constitutional if understood as a tax; the red states argued in 2018 that without a penalty, the requirement was no longer a tax and therefore invalid.

If that’s all there was, this wouldn’t be a crisis. The requirement has not been enforced anyway, and its continued validity is academic. The crisis comes from the fact that the challengers decided also to argue that the entire Affordable Care Act must go down with it — that all the benefits that exist apart from the toothless purchase requirement could not function without it, despite the fact that the A.C.A. is indeed functioning without it. The Trump administration ultimately agreed with this extreme position.

The irony here is that the settled legal test that all courts, including the Supreme Court, apply in such circumstances expressly requires the court to ask what Congress would have wanted: Had Congress known a piece of a larger law would be struck down as unconstitutional, would it have wanted the rest of the statute to stand? Usually this inquiry — known as “severability” — requires a court to guess what Congress would have wanted to do. The A.C.A.’s case, however, is unusually easy because it was the 2017 Congress that made the decision to excise a piece of the law, and that same Congress left the rest of the law standing. End of story.

The way in which the trial court flouted that legal test and in so doing usurped the clearly expressed position of the 2017 Congress is the reason there is a broad legal consensus that the decision is lawless. It’s also the reason the appellate court should have reversed outright rather than buying time for the president by sending it back to the trial court for another look.

The appellate court told the trial court to examine the A.C.A. more carefully with “a finer-toothed comb,” to determine how many — if any — provisions are really inextricably tied to the purchase requirement. It also rightly chided the trial court for not giving proper consideration to the position of the 2017 Congress, as the legal test required it should.

But as the dissenting judge noted, the appellate court itself could have shut the case down and left the future of health care to the democratic process, where it belongs. She wrote: “It is difficult to imagine a plainer indication that Congress considered the coverage requirement entirely dispensable and, hence, severable. And yet, the majority is unwilling to resolve the severability issue.” She added that it “will unnecessarily prolong this litigation” and so will cause continued uncertainty “over the future of the health care sector.”

In short, no one wants to be held accountable. It is going to be up to the voters to see through the all the ways in which opponents of the Affordable Care Act have tried to hide from the public their sustained efforts to destroy the law, before it is too late.