As somebody who has been a critic of Obamacare since its early days as a campaign proposal, I’d obviously love for the law to be entirely repealed. But what the Trump administration Department of Justice has just done is to latch onto a bizarre legal theory in an effort to get rid of the law without having to go through Congress.
At issue is a case brought by a coalition of states led by Texas that argues that Obamacare needs to be completely struck down by courts because the 2017 tax law reduced individual mandate penalties to $0. It was boosted by a shoddy decision by a Texas District Court judge last December and is currently under appeal.
In 2012, the U.S. Supreme Court ruled that the individual mandate could not be justified by the Commerce Clause of the Constitution, but that it was permitted as part of Congress’s taxing power. It was, the majority determined, nothing more than a tax for going uninsured. Under the argument adopted by states, by eliminating the financial penalties in 2017, the mandate can no longer be justified as a tax, and since it can’t be justified on Commerce Clause grounds either, it means that it should be deemed unconstitutional. And once the mandate is deemed unconstitutional, challengers argue, the rest of the law must also fall.
Whatever one’s policy views, the legal argument is a mess from start to finish.
To begin with, it’s hard to see why anybody in this case would have legal standing to sue, a threshold which typically requires showing injury. Who is injured by an unenforceable provision that carries no penalty for noncompliance?
Even once you get past standing, it’s difficult to see how the individual mandate, previously found by the Supreme Court as constitutional, would be rendered unconstitutional in the absence of a penalty. John Roberts’ Obamacare ruling determined, “Neither the act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.” What the 2017 law did, thus, was effectively make sure that everybody was automatically in compliance. The tax law did not even technically eliminate the existence of the mandate penalties, it just reduced them to $0. How can a toothless mandate be an unconstitutional act of coercion when the Supreme Court ruled that a mandate with actual teeth was constitutional?
But even if the court decides to strike down the underlying mandate in the wake of the tax law, it’s harder still to see why judges would be forced to scrap the entire law. Legislative history surrounding the rationale for putting the individual mandate in the original law in 2010 is not relevant given that in 2017, Congress explicitly decided that it was fine to strike down the mandate penalties while keeping the rest of the law intact.
Previously, the DOJ had adopted the position that only partially supported the challengers, by arguing that only the regulations more closely associated with the mandate would have to be struck down, namely, the ban on denying insurance to those with pre-existing conditions, and of charging more to individuals based on health status. But now, the DOJ has announced that they are embracing the whole legal theory and calling for the whole law to be struck down.
As much as I’d like to see Obamacare disappear so that it can be replaced with a free market healthcare system, in the long-run, it’s more important to me as a conservative that courts are not used as a legislative body for people to obtain the policy outcomes that they want but can’t pass through Congress.
