On December 18, 2019 two judges of the Fifth Circuit Court of Appeals decided two things. First, they affirmed a lower court's announced decision to gut the Affordable Care Act's requirement to purchase health insurance, the so-called "individual mandate." Second, the two judges agreed to remand the case to the same judge to decide, as he already has, that the entire ACA should be gutted too.
In a stinging dissent, "textbook judicial overreach" was highlighted as the basis not only of the decision of two judges of a Fifth Circuit panel, but the entire basis of the underlying decision to gut the Affordable Care Act on December 18, 2019:
Limits on judicial power demand special respect in a case like this. For one thing, careless judicial interference has the potential to be especially pernicious when it involves a complex statute like the ACA, which carries such significant implications for the welfare of the economy and the American populace at large. For another, the legitimacy of the judicial branch as a countermajoritarian institution in an otherwise democratic system depends on its ability to operate with restraint—and especially so in a high-profile case such as the one at bar. The district court's opinion is textbook judicial overreach. The majority perpetuates that overreach and, in remanding, ensures that no end for this litigation is in sight.
Texas v. United States, ___ F.3d ___, No. 19-10011, 2019 WL 6888446, at *44 (5th Cir. December 18, 2019).
And so it continues. How much longer can this go on?
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