Man, what a day for bad Obama precedents. First the DOJ follows O’s lead by seizing records from a reporter to find a leaker, then it announces it’ll selectively refuse to defend disfavored federal statutes in court, just like the last administration did with DOMA.(my bold) Can C.J. Roberts pull another rabbit out of the same, but diminished, hat?
Imagine how furious the left would be at these Justice Department affronts to freedom of the press and the rule of the law if they hadn’t pioneered them. Thanks, Obama!
It feels strange that the executive branch has to try to tank ObamaCare in court to get it undone when Republicans control both houses of Congress and the White House, but we’ve already been there, done that on legislative solutions. Time for Plan B. The catalyst for this decision is a lawsuit filed by various red states against ObamaCare claiming that, by SCOTUS’s own reasoning, the entirety of O-Care is now unconstitutional. How do they figure that? Because, if you remember John Roberts’s opinion from the ObamaCare ruling in 2012, the law is valid only because the individual mandate counts as a tax for constitutional purposes. Because Congress has the power to tax, it has the power to issue the mandate. And the mandate is the foundation for the entire program. Four justices were prepared to rule in 2012 that the whole law was unconstitutional because the mandate was.
Last year, though, the GOP repealed the mandate’s financial penalty. It used to be that if you refused to buy health insurance, you’d be fined — or “taxed” — a certain percentage of your income by the IRS. The mandate is still technically on the books but there’s no longer any penalty for refusing to comply with it. Which means there’s no tax. And if there’s no tax then there’s no longer any constitutional basis to support ObamaCare. The DOJ now agrees with that view, although rather than insist that the entire program has become unconstitutional, they’re claiming that only certain specific parts are, most notably the requirement that insurers must cover people regardless of preexisting conditions. (The ObamaCare insurance exchanges, for instance, should be left untouched in the DOJ’s view.) The idea is that if there’s no longer any revenue from the mandate to finance coverage for the sick then insurers can’t very well be expected to finance coverage for sick. So the DOJ will no longer argue that they should. If the courts agree with them, the entire program will be effectively eviscerated.
Linked at Pirate's Code in the weekly "Sorta Blogless Sunday Pinup" and links.