On December 14, 2018, Judge O’Connor issued an Order (available here) in Texas v. United States. In the case, plaintiffs argued that, following passage of the Tax Cuts and Jobs Act of 2017 (TCJA), the “individual mandate” (i.e., the requirement that, with limited exceptions, all Americans obtain health insurance) in the Patient Protection and Affordable Care Act (ACA) was unconstitutional. Judge O’Connor agreed, finding that the individual mandate could no longer be supported as an exercise of Congress’ Tax Power (because the TCJA no longer imposed any tax on failure to obtain health insurance). (The Supreme Court had previously found that the ACA was unconstitutional under the Interstate Commerce Clause, but constitutional under Congress’ Tax Power because it triggered a tax.)
With the individual mandate held unconstitutional, Judge O’Connor needed to determine whether the entire ACA fell. Because Judge O’Connor found that the individual mandate was not severable from the ACA, he invalidated the entirety of the ACA.
The issue in this case is likely one of the most important issues to be taken up by a judge in the Northern District of Texas in the last decade. The decision will be appealed to the Fifth Circuit and the case will likely reach the Supreme Court if the Fifth Circuit agrees with Judge O’Connor (which would be the third time the Supreme Court weighs in on the ACA).