The Department of Justice argued before a panel of judges Tuesday that a district judge’s “reflexive” nationwide block of free, life-saving health care screenings mandated under the Affordable Care Act was a “legal error.”
Nationwide injunctions of this kind, or similar forms of universal relief, have become a mainstay in challenges to Biden administration actions. In this case, the injunction was handed down by one of the most notorious of these right-wing judges, Judge Reed O’Connor. He and a few other, similar judges — who, critically, get all or nearly all of the cases in their divisions — deploy similar injunctions with such regularity that right-wing litigants have been able to make regular use of their courts to stymie the administration.
In the case that formed the basis of Tuesday’s ACA hearing, O’Connor granted relief not just to the various plaintiffs, but prevented government officials from enforcing those free service requirements nationwide.
A panel of judges at the Fifth Circuit Court of Appeals issued an administrative stay in response to O’Connor’s decision in mid-May, putting his ruling on ice until the judges could consider the ruling more comprehensively. On Tuesday, the panel — a moderate one by the standards of the very right-wing Fifth Circuit — at times sounded skeptical of the anti-ACA litigants’ arguments.
Jonathan Mitchell, the former solicitor general of Texas who gained notoriety for crafting the state’s bounty hunter-style abortion ban, staked his opposition to the judges extending their stay on a fairly convoluted argument.
He argued that “no rational insurer” would stop providing the formerly-mandatory cost-free screenings on the chance that O’Connor’s decision will be overturned, exposing the insurance companies to retroactive penalties and fines for the lapse in coverage.
“It sounds fairly unusual to me as a way to analyze whether a stay is proper,” Judge Leslie Southwick said, adding that Mitchell is premising his argument on sheer speculation.
Additionally, if Mitchell and his team believe that no insurer would alter its coverage, it makes his argument against the stay much flimsier, as that’s the same end result a longer stay would achieve.
The DOJ argued that the relief should apply only to the named plaintiffs (those that can prove standing, anyway).
“It can’t be overstated how important this guarantee of cost-free access is for the 150 million people not here to protect themselves,” DOJ lawyer Alisa Klein argued, referencing the people covered by the ACA requirement.
While the case has major ramifications on the merits alone, the procedural arguments bear weight too. Nearly every major recent anti-administration case — from immigration to abortion to health care — has come through this pipeline, which funnels the cases from a couple Texas district courts to the Fifth Circuit to the Supreme Court, all extremely friendly venues for right-wing causes.
Congress, along with the beleaguered administration, has taken notice. Sen. Mazie Hirono (D-HI) recently introduced a bill to route lawsuits seeking nationwide relief from federal government action beyond parties named on a suit through the Washington D.C. district court, preventing the kind of hyper-specific judge shopping the right-wing litigants have been so frequently doing.
While many Democratic senators told TPM that they were concerned about judge shopping in general, few were even aware of Hirono’s bill, much less had any plan to act on their unease — leaving the DOJ to fight the blanket injunctions on a case-by-case basis, often on hostile terrain.
Correction: This article originally identified Judge O’Connor as a Trump appointee. He was appointed by George W. Bush.
