September 5, 2014 10:56AM 

# Are Democratic-Appointed Judges a Sure Thing for ACA? 

By [David Boaz](https://www.cato.org/people/david-boaz) 

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Jason Millman of the *Washington Post*’s Wonkblog [casually assumes](http://www.washingtonpost.com/blogs/wonkblog/wp/2014/09/04/obamacare-supporters-just-got-some-good-news-from-the-courts/) that Democratic-appointed judges can be counted on to uphold the Affordable Care Act and its implementation against any legal challenge:

> The Obama administration and **supporters of the president’s health-care law are probably breathing a little easier this morning** after some pretty big news from the U.S. Court of Appeals for the District of Columbia.
> 
> 
> A few months after a three-member panel of the court [ruled](http://www.washingtonpost.com/national/health-science/federal-appeals-court-panel-deals-major-blow-to-health-law/2014/07/22/c86dd2ce-06a5-11e4-bbf1-cc51275e7f8f_story.html) the federal government can’t provide insurance subsidies through federal-run exchanges in 36 states, the court on Thursday [granted](http://pdfserver.amlaw.com/nlj/halbig_enbanc_20140904.pdf) the Obama administration’s request for the entire panel to re-hear the case. The *en banc* hearing, as it’s known, wasn’t entirely unexpected—and **with a heavy makeup of Democratic-appointed judges on the panel, it seems likely the administration will get a more favorable ruling** when the entire court reconsiders the case later this year.

I don’t know. I know that Obamacare passed in both the House and Senate on straight party-line votes, over unanimous Republican opposition. But judges aren’t politicians. With a [slew](https://www.cato.org/blog/reagan-appointed-judge-strikes-down-gay-marriage-ban) of [Reagan](http://www.nytimes.com/2013/09/02/us/surprising-friend-of-gay-rights-in-a-high-place.html?pagewanted=all&_r=0)- and [Bush](http://www.nytimes.com/2014/05/21/us/judge-strikes-down-pennsylvania-ban-on-gay-marriage.html)-appointed [judges](http://www.reuters.com/article/2014/09/04/us-usa-gayrmarriage-indianawisconsin-idUSKBN0GZ2J420140904) striking down gay marriage bans, I hope and expect that Democratic-appointed judges will show similar [nonpartisan judiciousness](http://www.britannica.com/blogs/2011/08/judges-rule-law/) when they consider the challenge to the IRS’s [illegal](https://object.cato.org/sites/cato.org/files/articles/cannon-adler-health-matrix-23.pdf) implementation of insurance subsidies.

##### Related Tags 

[Health Care](https://www.cato.org/health-care), [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) 

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