Ignore everything you have been told by the “news” media about Texas v. United States, the lawsuit recently filed by 20 states challenging the constitutionality of Obamacare. The Fourth Estate, in its all but official role as the public relations department of the Democratic Party, has generally downplayed the suit as yet another futile attempt by fanatical Republicans bent on destroying former President Obama’s “legacy.” Following their usual playbook for reporting constitutional challenges to the “Affordable Care Act” the media briefly sneered about its merits and then, to paraphrase David Burge, “covered the story with a pillow.”
It is nonetheless an important case and it’s useful to review the basis on which the plaintiffs actually base their case against the mandate: In 2012, a majority of the Supreme Court’s justices — including Chief Justice Roberts — rejected the government’s claim that Congress could impose the individual mandate pursuant to the Commerce Clause of the Constitution. Yet Roberts held that the mandate was still constitutional because its penalty was a tax collected by the IRS to raise revenue. The plaintiffs argue that this “saving construction” evaporated when Congress reduced the penalty to zero last year. Their complaint puts it as follows:
The Patient Protection and Affordable Care Act… as recently amended, forces an unconstitutional and irrational regime onto the States and their citizens. Because this recent amendment renders legally impossible the Supreme Court’s prior saving construction of the Affordable Care Act’s core provision — the individual mandate — the Court should hold that the ACA is unlawful and enjoin its operation.
In other words, because Congress has no authority to impose the individual mandate pursuant to the Commerce Clause, and it can’t be justified as a revenue-raising device (since enactment of the Tax Cuts and Jobs Act of 2017), the mandate must be struck down. But why should the entire “reform” law also be struck down? Virtually all statutes contain a “severability” clause essentially stating that, if any of its provisions are found to be legally invalid, the remaining provisions stay in force. The “Affordable Care Act” has no severability clause. The plaintiffs therefore argue that, if the mandate is struck down, the rest of law must fall:
Once the heart of the ACA — the individual mandate — is declared unconstitutional, the remainder of the ACA must also fall… without any accompanying exercise of Congress’s taxing power, which the Supreme Court already held that Congress has no authority to enact. Not only is the individual mandate now unlawful, but this core provision is not severable from the rest of the ACA — as four Justices of the Supreme Court already concluded. In fact, Congress stated in the legislative text that the ACA does not function without the individual mandate.
What do the constitutional experts have to say about all this? Randy Barnett, of the Georgetown University Law Center, believes that the plaintiffs have an excellent case on the unconstitutionality of the mandate: “On this claim, the AG’s are on very strong ground … NFIB v. Sebelius was a bigger victory than we realized when it was decided, as it left the insurance mandate susceptible to being killed off in this way via reconciliation.” Professor Barnett is somewhat less sanguine about the probability of bringing down the entire law based on the severability argument. Likewise, Ilya Somin of George Mason University School of Law writes:
While the state plaintiffs are right to argue that the individual mandate can no longer be considered a tax, they are wrong to claim that the fall of the mandate should take the rest of Obamacare down with it. The states do not assert that any other part of the ACA is unconstitutional; they argue, rather, that the rest must be struck down because the individual mandate cannot be “severed” from it…. Congress has already effectively neutered the individual mandate, while leaving the rest of the ACA in place.
Josh Blackman, of the South Texas College of Law Houston, agrees with Somin that the insurance mandate has now been rendered unconstitutional under the “saving construction” approach concocted by Chief Justice Roberts in NFIB v. Sebelius. Blackman is, however, less pessimistic about the possibility that Texas v. United States could bring down the entire health care “reform” law based on inseverablity. In support of his opinion he points out that Congress consistently referred only to the mandate, without any explicit reference to the accompanying penalty, as “essential to creating effective health insurance markets”:
If Congress had stated in its findings that the “requirement and the penalty are essential to creating effective health insurance markets,” my argument here would be very different. But it did not make such a finding.… Rather, the finding stated only that “The requirement is essential to creating effective health insurance markets.” And this is the finding that will inform the severability analysis.
Where does all this leave us with regard to the possibility that Texas, Wisconsin, and 18 other states can finally bring down the abomination known to its supporters as the “Affordable Care Act”? The lawsuit was filed in the Northern District of Texas where U.S. District Judge Reed O’Connor will hear the case. O’Connor is the judge who recently ruled that health care providers cannot be forced to perform procedures that conflict with their religious beliefs. This judge is likely to rule in favor of the 20 plaintiffs, and any appeal would go to the Fifth Circuit Court of Appeals, which is routinely denounced by progressives as too conservative.
So, the case will almost certainly wind up before the U.S. Supreme Court, and it’s a good bet that the justices will finally banish the individual mandate to outer darkness in a 5-4 ruling. Will they fall in with the inseverability argument, and kill Obamacare in its entirety? Probably not, but it stands a far better chance of doing so than the “news” media has reported.
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