Tuesday, May 22, 2018

Obamacare Schadenfreude: It's Dead, Jim!

It's been a long time, and I've let a bunch of stories accumulate in the Obamacare bin, but I'm going to delete them now: With the individual mandate dead, the rest of Obamacare is unconstitutional
Almost no one saw it coming.

In 2012, Chief Justice John Roberts famously ruled the Affordable Care Act’s provision mandating most people purchase health insurance or else pay a fine constitutional on the basis that Congress has the authority to tax individuals, and the so-called Obamacare “fine” is effectively a tax.

As the now-deceased Justice Antonin Scalia pointed out in his dissenting opinion, in classifying the Obamacare penalty as a “tax,” Roberts ignored history, the language of the healthcare law, statements made by the Obama administration and Democrats in Congress, and common sense. (The obvious difference between a fine and a tax is that the purpose of a tax is to raise revenue, not to force people to behave in a particular way.)

Interestingly, however faulty Roberts’ decision may have been, it now serves as the foundation for a legal argument that could eventually lead to Obamacare’s demise.

One of the most overlooked aspects of Roberts’ opinion, one that could become increasingly important over the next year, is that he joined the Court’s four dissenting justices in rejecting the alternative arguments made by the Obama administration regarding the constitutionality of the individual mandate. Most importantly, Roberts stated plainly the argument the individual mandate is constitutional under the Constitution’s Commerce Clause is false.

In fact, the only basis for the mandate’s constitutionality, according to Roberts, is that it’s a tax — not a fine, penalty, or anything else. This is a vital point, because when Republicans passed their tax reform legislation in December 2017, they included a provision in the law that lowers the individual mandate penalty to $0 beginning in January 2019, effectively eliminating any hope the individual mandate could still be considered a “tax.”

If the tax-less individual mandate is now found to be unconstitutional, it could very likely result in the entire healthcare law being struck down. In their 2012 dissenting opinion, four Supreme Court judges argued the ACA could not survive absent the individual mandate. Although Roberts never addressed the question in his opinion, there are good reasons to believe he should agree to throw the entire law out.
. . .
It’s also worth noting I’ve spoken to well-informed legal experts, including Ken Cuccinelli, the former attorney general of Virginia, who have said the Trump administration doesn’t need to enforce the ACA once the individual mandate penalty is reduced to $0. President Trump has sworn an oath to defend the Constitution, and this law is now or will soon become in violation of the Constitution, even if one continues to accept the dubious argument the individual mandate’s penalty is really a tax.

This means all it would take to end Obamacare is a decision by the Trump administration not to enforce this illegal law by agreeing to settle the lawsuit brought by plaintiffs challenging the constitutionality of the individual mandate. Such a move would likely trigger lawsuits from left-leaning states and intense legal battles, but perhaps in the process, Congress would finally be motivated to repeal and replace Obamacare — something it has failed to do despite its leadership having promised to do so for eight years.
Never discount the Supreme Court's ability to twist law and logic.

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