Twenty states led by Texas and Wisconsin have filed a suit that seeks to revisit the individual mandate issue as part of a bid to force the Trump administration to repeal all of Obamacare, but there are a number of reasons to be skeptical it can prevail.
As reported by my colleague Kimberly Leonard, the suit contends that Republicans’ repeal of the individual mandate’s penalties renders the mandate unconstitutional under the 2012 decision that previously upheld the mandate as a lawful exercise of Congress’ taxing power. Now that the penalty for going uninsured is zero dollars, the suit contends, there is no tax, and thus it can no longer be held constitutional. The suit then argues that the mandate is inextricably linked to the rest of the law, so if the mandate is unconstitutional, the entire law must be struck down.
To me, there are two roadblocks that immediately come to mind. First, the original 2012 decision, NFIB v. Sebelius, just four justices agreed that if the mandate is struck down, all of Obamacare must fall — and the five justice majority that upheld Obamacare remains on the Supreme Court.
Of course, this assumes that it even gets that far, which is also hard to imagine.
Chief Justice John Roberts’ opinion in NFIB v. Sebelius rested on the idea that the mandate imposes no distinct obligation on individuals to purchase insurance, because as long as they pay the tax, they are assumed to be in full compliance with the law.
“While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful,” Roberts wrote for the majority. “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.”
Thus, the logical conclusion would seem to be that by reducing the penalty to zero, as Republicans have done, every citizen is effectively in compliance, regardless of whether or not they purchase insurance. For a court to even consider the merits of a given case, the plaintiff must be able to show injury. But absent a penalty, how, exactly can anybody show an injury? They aren’t being subjected to a tax, and they aren’t living under the cloud of legal sanctions by going uninsured.
So at this point, it’s hard to see this case getting very far. And keep in mind, I was somebody who was taking the individual mandate challenge seriously back in 2010 when many were trying to dismiss it as frivolous, so it isn’t as if I’m reflexively dismissive to challenges to Obamacare.
