Star right-wing lawyer Jonathan Mitchell — of Texas bounty-hunter abortion law fame — argued Monday that the recent tendency of conservative justices to stymy government action for the whole country has gone too far.
This would be more believable a) if Mitchell and ideologically aligned attorneys didn’t consistently seek out this result and b) if Mitchell wasn’t seeking it out in this very case.
Right-wing judges, particularly Donald Trump appointees, have gotten progressively more comfortable handing down various forms of nationwide relief, whether it be a nationwide injunctions or universal vacatur, that extends the relief a small group of plaintiffs are seeking for themselves and applies it to the entire country. It’s attracted the notice of U.S. senators, Supreme Court justices and the Justice Department.
It’s the second piece of a judge shopping two-step, where right-wing litigants identify hyper-partisan judges who get all or most of the cases in their division — see: U.S. District Judge Matthew Kacsmaryk in Amarillo — and get a ruling from that one judge that dictates what the federal government can and can’t do. It vests these judges with enormous power, as they eagerly cast off the requirement that they keep their rulings as narrow as possible.
In Monday’s case at the 5th Circuit Court of Appeals, Braidwood Management, Et Al. v. Xavier Becerra, a few people in Texas say they don’t want to comply with the Affordable Care Act’s requirements related to covered preventive services (things like cancer screenings). And they argue that they don’t have to, because the members of the task force that identified various services that must be provided for free were improperly appointed.
The government’s posture is: Fine. These plaintiffs can be exempted from the requirement — they mostly aren’t even currently in the heath care market (after having left it due to expense and not these idiosyncratic concerns), and may not be able to even find a Texas insurer to sell them the “bespoke plans” they want.
But Judge Reed O’Connor in Texas granted the plaintiffs universal relief, turning a fairly small-potatoes case into a major blow to the part of the law that provides free and critical preventive care to, by the government’s estimate, 150 million Americans.
To hear him tell it, Mitchell, who’s recently been the go-to attorney for arguing various culture war cases at the Supreme Court, doesn’t think much of this growing trend among conservative justices — though he rushes to add that it’s still appropriate in this case.
“We see district judges throughout the United States issuing nationwide injunctions in situations where they should not,” he said Monday. “We are not in any way today defending the propriety of nationwide injunctions. The rule should always be, when it comes to remedies: the court should, to the extent possible, limit relief to what is necessary to give full redress.”
In accordance with the judge shopping two-step, this case has gone from a dependably right-wing district judge to the 5th Circuit, perhaps the most aggressively conservative appellate court in the country.
Trump appointee Judge Cory Wilson — along with his fellow Monday panel member and Trump appointee Don Willet, an avowed opponent of the Affordable Care Act — seemed to shrug at the idea of such expansive relief.
“You wouldn’t vacate these things just for people in Texas or just for the plaintiffs — if they’re invalid, they’re invalid,” he said to the Department of Justice lawyer.