Meet The Judges Who Will Decide ACA’s Fate

Judges in photo from left to right: Carolyn Dineen King, Kurt Engelhardt, Jennifer Walker Elrod.

In December of last year, headlines screamed about the end of the Affordable Care Act.

A district court judge in Texas had ruled that the whole health care law is unconstitutional in the most recent Texas v. United States case.

He based his decision on the 2017 repeal of the ACA’s individual mandate that penalized people who didn’t have insurance, and progressives and conservatives across the country have called O’Connor’s reasoning faulty.

Now, the case is in the 5th Circuit Court of Appeals, where a three-judge panel will decide if the ruling can stand.

The Judges

The three judges are expected to represent left, right and center viewpoints on the case, with Judge Carolyn Dineen King, a Jimmy Carter appointment on the left, Judge Kurt Engelhardt, appointed by Donald Trump on the right, and the center occupied by Judge Jennifer Walker Elrod, who was appointed by George W. Bush.

Engelhardt, the newest member, was confirmed in May 2018, with a 62-34 vote. Sens. Elizabeth Warren, Bernie Sanders, Kamala Harris, Kirsten Gillibrand and Cory Booker voted against his confirmation. Sens. Amy Klobuchar and Michael Bennet voted in favor.

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The Alliance for Justice, a progressive judicial advocacy group, highlighted concerns about Engelhardt because of his association with the Federalist Society, a conservative legal political organization that many of Trump’s nominees have come from. He was also a member of Louisiana Lawyers for Life formerly.

Other concerns the Alliance for Justice named are related to how Engelhardt handled cases about misconduct of law enforcement in Louisiana.

According to a write-up in the Texas Tribune: “Engelhardt, who is among the newest appointees to the court, was harsh and occasionally sarcastic, asking more questions of the blue state coalition than he did of the Texas-led team. He seemed skeptical of the standing of both the California-led coalition and the Democratic-majority U.S. House of Representatives, which intervened in the case although the Republican-majority U.S. Senate did not.”

The likely swing vote, Elrod has served on the Circuit Court for about 10 years.  She asked the most questions of the three, and addressed both sides of the debate.

The Background

The case made it to the circuit court from the desk of U.S. District Court Judge Reed O’Connor, the one who said the ACA was unconstitutional.

Stationed in Fort Worth, O’Connor is the only active judge in the Northern District of Texas. The other two have senior status, which means they’re semi-retired.

As a result, cases filed in the Northern District are more likely to appear in front of O’Connor. The Texas Tribune reports that, “Since 2015, almost half of all challenges to the federal government that Texas filed in district courts here landed in O’Connor’s courtroom.”

This maneuver isn’t unusual in the court system.

The strategy is called “forum shopping” and it’s an effort pursued by both conservatives and progressives at times. The goal is simply to have a case heard in the court that is most likely to provide a favorable judgment.

In Texas, cases that go to the Northern District are more likely to show up in front of O’Connor.

Reaction and Potential Ruling

The court heard oral arguments on July 9, and it’s unclear what the final decision might look like.

One analysis suggested that the conservative judges are open to O’Connor’s logic.

However it ends up, it’s likely that the case is appealed up to the Supreme Court.

Legal experts across the political spectrum have criticized O’Connor’s ruling, with most saying that it goes too far.

“The conservative National Review ‘deplores’ the decision. A Washington Post columnist wrote that ‘Even the right dislikes the new Obamacare ruling.’ The influential blog Above the Law published a round-up of criticisms from a long list of legal experts, headline: ‘Legal Commentators Nearly Pull A Muscle Condemning Judge’s Affordable Care Act Decision,’” the Texas Tribune wrote.

The Wall Street Journal’s editorial board also opposed the decision. Two law professors who disagree about the ACA wrote a piece in the New York Times criticizing O’Connor’s ruling.

They wrote: “Some arguments, however, are beyond the pale. The claim that the alleged unconstitutionality of a mandate Congress has legislated not to enforce requires striking down other parts of the law that Congress has left standing is among them.”

The Fifth Circuit

The Fifth Circuit Court of Appeals covers Texas, Mississippi and Louisiana. It has 17 seats, one of which has a nomination pending. Five of the justices were appointed by Democratic presidents and 12 have been appointed by Republicans.

The 5th Circuit played a role in the civil rights movement, but today the conservative court tracker gives it a conservative lean.


by Nikoel Hytrek
Posted 7/30/19

2 Comments on "Meet The Judges Who Will Decide ACA’s Fate"

  • Fasten your seatbelts. This WILL make to SCOTUS, where it’ll be 5-4 in favor of keeping the ACA (Roberts will be the deciding vote). If the 5th Circuit says the ACA is Constitutional, you KNOW the anti-ACA zealots will appeal to SCOTUS, and if, by some twisted (il)logic the 5th Circuit says it is UNCounstitutional, almost the entire legal community will howl and it’ll land in SCOTUS’ lap.
    We can’t have anything nice.

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