A Trump administration effort to make more affordable, short-term medical insurance plans available to more people despite Obamacare's onerous regulations survived a federal court challenge on Friday.

In a ruling for the United States District Court in Washington, D.C., Judge Richard Leon dismissed a challenge to the 2018 regulation  brought by a group of organizations offering insurance plans. The suing organizations say that the rule undermined the 2010 Affordable Care Act.

“Not only is any potential negative impact” from the Trump regulation “minimal," Leon wrote, "but its benefits are undeniable.”

In August 2018, the Trump administration announced a regulation that would re-expand the availability of short-term medical insurance plans that are less expensive partly because they are not subject to the same kinds of regulations that make Obamacare-compliant insurance plans so expensive.

"We will deliver relief to American workers, families, and small businesses, who right now are being crushed by Obamacare, by increasing freedom, choice, and opportunity for the American people," read a statement from the president alongside the White House's announcement.

Opponents of the plans say that these less expensive plans undermine Obamacare and provide people with spotty coverage.

However, since Congress set the Obamacare individual mandate penalty at zero, Judge Leon ruled that the new rule simply helps people who cannot afford skyrocketing insurance costs.

"Because Congress effectively eliminated the individual mandate, relatively healthy Exchange enrollees are no longer choosing between paying ACA-compliant plan premiums or a fine. Their choice now is between paying ACA plan premiums and going uninsured altogether," Leon continued. "By modestly (re)expanding the utility of less expensive [less-regulated] plans, the Rule aims to minimize the harm and expense that would result from these individuals opting to forgo health insurance in the face of rising premiums."

To claims that the short-term plans would sabotage Obamacare, Leon added, "There is no indication in the evidence submitted that the Rule is having or will have the type of impact — substantial exodus from the individual market Exchanges — that would threaten the ACA's structural core," despite plaintiffs' claims to the contrary.

The judge also ruled that the Trump administration was completely within the power afforded to it by federal law to issue the rule, writing, "Congress clearly did not intend for the law to apply to all species of individual health insurance" because the lawmakers who passed it "were not rigidly pursuing the ACA-compliant market at all costs, e.g., at the risk of individuals going without insurance altogether."

Judges evidently have the power to nullify our borders, life, marriage, and election law, so do they have the power to tear up Obamacare? On Tuesday, the Fifth Circuit Court of Appeals will hear oral arguments in the Texas case, where a district judge already granted summary judgment ruling that Obamacare is unconstitutional.

So how should enemies of judicial supremacy feel, in light of the strong possibility that the appeals court will uphold the ruling declaring Obamacare, which is a fundamentally political issue, unconstitutional? That is a question many have posed to me, and I want to tackle each angle of this issue separately. There are many facets to Judge Reed O’Connor’s ruling last December, some of which I agree with, some of which I don’t, and in some, he is following existing legal practice that should be changed across the board.

In December, Judge Reed O’Connor, a Bush appointee for the Northern District of Texas, granted summary judgement in Texas v. Azar to plaintiffs suing against Obamacare. O’Connor believes that because there is no longer a penalty buttressing the individual mandate, the mandate can no longer be justified as a tax and is therefore an unconstitutional mandate under the Commerce Clause, pursuant to what the Supreme Court said in the original Obamacare case, NFIB v. Sebelius. He further stated that, as the court indicated in the original Obamacare case, because the individual mandate is inextricably tied into the mechanics of the insurance coverage regulations and the subsidy scheme of the law, once the mandate is unconstitutional, the rest of the law must be invalidated as well.

Liberals can’t have it both ways on judicial supremacism

Unlike recent liberal court rulings on fundamentally political questions of broad consequence, Judge O’Connor didn’t issue an immediate injunction, and the law has continued to function throughout the appeals process. Most people don’t even know the judgement was issued.

Obviously, conservatives would be euphoric over the policy outcome of this decision, assuming the Supreme Court agreed to uphold it (unlikely, in my view, given the politics of John Roberts). Conservatives must be prepared with a proactive approach to health care freedom. However, should we celebrate the legality of this opinion, considering that it would be settling a political difference in the courts?

This would be a good time for the Right and the Left to get together and compromise by agreeing to take “vital questions affecting the whole people,” as Abraham Lincoln suggested, out of the court system or change the legal norms of the degree of finality we accord to the judicial branch for opinions in individual cases that affect broad policies. Many of these questions should be devolved to states courts. We need judicial reform to narrow the jurisdiction of judges, scope of relief they can offer, and the rules for standing to ensure courts don’t become executive veto pens and legislatures all in one.

Absent such a compromise, however, as courts continue to nullify our sovereignty, religious liberty, marriage, abortion regulations, and election law, all I can say to my liberal friends is what’s good for the goose is good for the gander.

What distinguishes proper judicial power from judicial tyranny

I have mixed feelings about the Fifth Circuit potentially “overturning” Obamacare. In order to understand in what ways this ruling would be appropriate, we need to first go back to the fundamentals of the role of the courts and the other branches in resolving constitutional questions. (You can listen to my podcast series here, here, here, here, here, and here.)

The courts’ role of judicial review, when understood properly, is distinct from judicial supremacy. Conservatives believe in constitutional supremacy, which negates the idea of judicial supremacy. All three branches, all 50 states, and the people as a whole have a responsibility to safeguard the Constitution, and each are given specific roles and powers to do so.

There is no doubt that when a law or policy promulgated by the political branches of state or federal government directly and adversely affects a citizen while implicating an unambiguous right spelled out in the Constitution or oversteps its constitutional powers, citizens have the right to petition a court (subject to congressional regulation) for relief as one of the avenues of redressing their grievances. A court, in turn, has the power to grant that plaintiff or group of plaintiffs (with legitimate standing before the court) a judgement relieving them from the harm of that law or policy (not vetoing the law).

That is only done, according to Justice John Marshall in Marbury v. Madison, if the judge believes that the “unchangeable” Constitution demands such a result. “In some cases, then, the Constitution must be looked into by the judges” in order to resolve specific cases, wrote Marshal in the landmark judicial case.

“Some cases” was a reference to Alexander Hamilton’s explanation in Federalist #78 of judges examining the Constitution when laws governing cases were “contrary to the manifest tenor of the Constitution,” such as “bills of attainder, no ex-post-facto laws, and the like.” James Iredell, one of the fathers of Article III and an original Supreme Court justice, explained that judges will only make such pronouncements when the law is “unconstitutional beyond dispute” and only in a “clear and urgent case.” He did so in Calder v. Bull, which was about an ex post facto law.

However, the notion that a federal judge is the sole and final avenue in addressing that issue, that his opinion is self-executing on other branches of government, even when they disagree with the constitutionality of the opinion, and that the opinion is universally binding on non-plaintiffs is false and rooted in the phantom doctrine of judicial supremacy and judicial exclusivity. In other words, it’s not so much what the judges are doing (although they are pretty radical); it’s the lack of “legislative and executive review” from the other branches to check those decisions when they know they are wrong.

Judges can’t nullify, veto, or “strike down” laws the same way a president or governor has a veto power on legislation that passes a legislature. This was a different system the Founders contemplated as the “Council of Revision,” which would have been instead of, not in addition to, the independent presidential veto.

A judge, however, has the power to offer an opinion on a constitutional question when A) there is a legitimate “unchangeable” (not BS) constitutional right in play “beyond dispute”; B), the plaintiff has legitimate standing (e.g. is not a foreign national seeking entry or a third-party group that simply doesn’t like the policy); C) the plaintiff has a tangible, concrete, and individualized injury-in-fact from the law or policy that is directly redressable through the court; and D) the judge only rules for that plaintiff and for the limited, individualized relief sought, not on an abstract policy tangentially connected to but not pertaining to that plaintiff’s request or to the exact argument posited by the plaintiff. Anything else is just a judge acting like a legislature or an executive veto rather than an adjudicative body.

Finally, other branches are free to push back and, if you understand the rationale behind Marbury v. Madison, are downright obligated to push back and uphold constitutional supremacy.

Ignorance on health care policy is the pre-existing condition of both political parties. For the past four election cycles, Republicans lied to us about repealing Obamacare and finally allowing a market-based system built on competition to flourish. Now they are officially running in November on the same platform as Democrats on health care, the defining economic and fiscal issue of our time.

While the GOP base is captivated by the Kavanaugh saga and the spectacle of GOP leaders fighting on this one issue, we have forgotten about the biggest betrayal of all: Obamacare. Republicans not only lied to us about repealing Obamacare when they controlled all three branches, they have now championed the core elements of the law, thereby making the entire premise of Obamacare a consensus. By ceding the entire narrative on health care, they have committed the ultimate malpractice by exonerating the Left from blame for hurting consumers. Quite a feat indeed!

Just before the House left town for the entirety of October, Rep. Pete Sessions, R-Texas, the chairman of the pivotal Rules Committee, introduced a resolution proclaiming that those with pre-existing conditions should have “access,” under any GOP Obamacare replacement, to plans that essentially codify the community rating regulation of Obamacare. Now, obviously Republicans are done with health care anyway, so this issue is, unfortunately, moot. But it’s jarring is that Republicans continue to echo the Democrat talking points without educating voters on how we got to this point and who is at fault. This follows comments made by Mitch McConnell a few months ago: “Everybody I know in the Senate, everybody is in favor of maintaining coverage for pre-existing conditions.”

There is a pre-existing condition plaguing committee chairmen and leaders of both parties who preach government-run health care. That condition is grave ignorance of how we got to this point with such a dysfunctional health care system.

We are told by the chief intellectuals and policy experts that we must destroy health care and the medical insurance market for everyone because of those with pre-existing conditions. But the entire discussion over repealing Obamacare hinges on one reality that everybody refuses to discuss.