After a federal judge in Texas declared Obamacare unconstitutional on what I saw as shaky legal grounds, I declared the decision an “assault on the rule of law.” On Wednesday, I met with Rob Henneke, a lawyer for individual plaintiffs in the suit, who said that myself and other critics “missed the mark” in our analysis, and he explained why.
The issue arises from a case brought by 20 states led by Texas and Wisconsin, along with other individuals. They charge that after Congress in 2017 zeroed out the penalty for going uninsured, they eliminated the basis for the Supreme Court’s 2012 ruling upholding Obamacare, and thus the individual mandate must fall, along with the rest of the law. U.S. District Court Judge Reed O’Connor agreed with plaintiffs, generating a flurry of criticism across the ideological spectrum.
I argued that the decision was problematic on three broad levels: the question of standing, on whether the actions of Congress now made Obamacare unconstitutional under the 2012 ruling, and on whether the rest of the law should be considered inseverable from the mandate, and thus completely eliminated if the mandate were struck down. One obvious problem I noted with the suit is that in the 2012 decision upholding Obamacare, Roberts said that anybody who paid the penalty was deemed to be in compliance with the mandate, thus it’s difficult to see what injury there would be for going uninsured.
Henneke, general counsel at the Texas Public Policy Foundation, who has been serving as attorney for the individual plaintiffs, has advanced an alternative theory that sees the requirement to purchase insurance (the mandate) as separate from the tax on going uninsured. All major differences flow from the way one views that distinction.
“You have to separate the individual mandate from the shared responsibility mandate and recognize that they’re two separate provisions,” Henneke said.
In his opinion in NFIB v. Sebelius, Roberts argued that the mandate was not constitutionally permissible by either the Commerce Clause or the Necessary and Proper Clause. Instead, he concluded that requiring individuals to buy insurance or pay a penalty was a constitutional exercise of Congress’s taxing power. As the plaintiffs see it, setting the tax to zero removed this justification.
“The point of O’Connor’s opinion is that the whole basis for Roberts’ saving [of Obamacare] has been eliminated, leaving the untouched analysis that the mandate was unconstitutional,” he said.
This distinction is important, he insisted, both when it comes to establishing legal standing to sue and when it comes to the merits.
“I represent the individual plaintiffs in this case, I represent individuals that don’t qualify for subsidies, aren’t Medicaid eligible, and are required under the mandate to purchase health insurance through the Affordable Care Act infrastructure,” he said.
He continued, “There’s no question that ‘shall purchase’ remains in the statute, it’s always remained in the statute, there’s no question the clients remain subject to that, and that requirement on them is of an unconstitutional nature so you’ve got standing right there.”
When it comes to the merits of the case, he said, “it’s not that the individual mandate now becomes unconstitutional, it’s that the judicial basis with which it was saved from being struck down in the first place has been eliminated. But the mandate itself has always been recognized by the Court as having constitutional deficiency.”
The issue that has perhaps attracted the most attention is the theory that the mandate (even absent a penalty) is so essential to the operation of the law that if it’s ruled unconstitutional, the rest of the law must also fall. This reasoning has been criticized from a number of angles, the most straightforward being that in 2017, Congress eliminated the penalties, which made the mandate toothless, without touching the rest of Obamacare, thus suggesting it was okay with carving out the mandate. Henneke’s counterargument once again flows from emphasizing the distinction between the underlying mandate and the penalties for going uninsured.
“Recognizing that the individual mandate [and penalties] are separate provisions here, what Congress did in 2017 in the budget reconciliation process didn’t touch the mandate,” he said.
Henneke pushed back against the criticism that O’Connor overstepped his bounds by sidestepping the 2012 Supreme Court decision, even though as a lower court judge he has to defer to higher court precedent. He said that the judge did the best he could with the twisted reasoning of the Roberts opinion.
“At the end of the day, the pretzel that exists was not created by O’Connor, in many ways it was not created by Congress, it was created by the Supreme Court,” he said. “And so I think O’Connor did a very disciplined job of staying true to the Texas statute and the controlling precedent of the case.”
With the case now heading for appeal, Henneke said, “Those that are predicting that the Fifth Circuit is going to slap this down are really maybe projecting desired outcomes rather than looking at what the role of the courts are as this thing moves through.”
Typically, a panel of three appellate judges consider a case, though there is always the possibility that the entire court could weigh in, in what’s known as an en banc hearing, which he predicted was a “high likelihood.”
He explained, “I think if the panel disrupts O’Connor’s opinion and really exercises judicial gymnastics to get there, then I think en banc panel will step in.”
Were it to get to the Supreme Court with the current composition, five justices who signed on to the 2012 opinion upholding Obamacare will still be on the court — the four liberals, plus Roberts.
“Roberts is the one who is ultimately going to have to come back to this,” he said, later adding, “Roberts can rebuild the jurisprudence of the Affordable Care Act to get around how he built the opinion in the first place.”
