Obamacare Schadenfreude Resurfaces

Democrats ask U.S. Supreme Court to save Obamacare

The Democratic-controlled U.S. House of Representatives and 20 Democratic-led states asked the Supreme Court on Friday to declare that the landmark Obamacare healthcare law does not violate the U.S. Constitution as lower courts have found in a lawsuit brought by Republican-led states.

The House and the states, including New York and California, want the Supreme Court to hear their appeals of a Dec. 18 ruling by the New Orleans-based 5th U.S. Circuit Court of Appeals that deemed the 2010 law’s “individual mandate” that required people to obtain health insurance unconstitutional.

The petitions asked the Supreme Court, which has a 5-4 conservative majority, to hear the case quickly and issue a definitive ruling on the law, formally called the Affordable Care Act, by the end of June.

Texas and 17 other conservative states - backed by President Donald Trump’s administration - filed a lawsuit challenging the law, which was signed by Democratic former President Barack Obama in 2010 over strenuous Republican opposition. A district court judge in Texas in 2018 found the entire law unconstitutional.
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In 2012, the Supreme Court narrowly upheld most Obamacare provisions including the individual mandate, which required people to obtain insurance or pay a financial penalty. The court defined this penalty as a tax and thus found the law permissible under the Constitution’s provision empowering Congress to levy taxes.

In 2017, Trump signed into law tax legislation passed by a Republican-led Congress that eliminated the individual mandate’s financial penalty. That law means the individual mandate can no longer be interpreted as a tax provision and therefore violates the Constitution, the 5th Circuit concluded.

It will be vewy vewy interesting to see where Judge Roberts fall this time. It was his last minute interpretation of the financial penalty as a tax (despite the Obama administration arguing otherwise while the law was being debated) that allowed the law to stand (5-4) the last time it reached the Supreme Court. Will he take his own reasoning seriously this time, and find it unconstitutional, or will he find some new rationalization for upholding it?

I'm betting the latter.