December 20, 2019,
While everyone was focused on the final day of impeachment debate in the House, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled, in a split decision, that the individual mandate provision of the Affordable Care Act is unconstitutional—and also that its unconstitutionality might doom the entire Act.
I won’t review the reasoning. Reach your own conclusion if you care to.
The issue for democratism isn’t who’s right and who’s wrong, but who gets to decide. The majority opinion was authored by a judge appointed by George W. Bush and joined by one appointed by Donald Trump. Jimmy Carter appointed the third judge, who issued a strong dissent.
Under basic principles of democracy, this case would have gone the other way. Trump would not be president, since most voters voted for his opponent. His appointee here would not have been appointed. Any judge appointed by a president Hillary Clinton would almost certainly have joined the Carter-appointed dissenter to make a majority.
Two-to-one is enough, but maybe it should have been 3-0 upholding the Act. Bush lost the popular vote, too, after all. His appointee in this case was at least nominated after the 2004 election, in which Bush did garner the most votes. In that election, though, Bush benefited from his incumbency and from the nationalist fervor generated by 9/11, both of which accrued to him only because of his undemocratic victory in 2000. Close call how to count his appointee.
Either way, a decision like this is a violation of the right of the people to self-government, and it’s not a rarity. Federal judges at every level make decisions every day that have a profound effect on people’s lives and our society. They should be appointed by presidents, and confirmed by Senates, that are chosen by the people.