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The Texas ruling finding the Affordable Care Act unconstitutional is ludicrous in its reasoning and unlikely to survive appeal. It argues, in short, that since Congress removed the penalty from the individual mandate, the individual mandate is no longer a tax; because the individual mandate is not a tax, it is no longer constitutional; and if the mandate is no longer constitutional, the entire law must be judged unconstitutional. To do anything else would be, of course, immodest. As Judge Reed O’Connor writes, courts “are not tasked with, nor are they suited to, policymaking.” Yes, he is literally writing that as he tries to overturn Obamacare with a stroke of his pen. You can almost hear the “lol” he must’ve deleted from the first draft. “If you were ever tempted to think that right-wing judges weren’t activist — that they were only ‘enforcing the Constitution’ or ‘reading the statute’ — this will persuade you to knock it off,” wrote law professor Nicholas Bagley. “This is insanity in print, and it will not stand up on appeal.” You might spy a hole in O’Connor’s reasoning: Wasn’t it Congress that chose to remove the penalty from the individual mandate without choosing to repeal all of Obamacare? And as such, isn’t it quite clear that Congress intended Obamacare to stand even without an individual mandate imposing a penalty? Ah, but O’Connor has thought of this. He says that since the Congress that repealed the individual mandate was working through budget reconciliation and couldn’t repeal the mandate, “the 2017 Congress had no intent with respect to the Individual Mandate’s severability” (“severability” refers to whether a provision can be severed from a law while the law still stands). And he goes on to say that even if he’s wrong, and the 2017 Congress did intend to do what it did, what it intended to do was to leave the mandate intact but penalty-less, thus leaving it unconstitutional, thus leaving the whole law unconstitutional. If this doesn’t make sense to you, that’s because it doesn’t make sense. Even the Trump administration didn’t want the judge to go this far. The