By Dan Calabrese
Wait, you’re thinking, wasn’t the individual mandate repealed as part of the tax reform law Trump signed in December?
Actually it was the tax penalty that was repealed. The individual mandate is technically still in place, but there is no enforcement mechanism. And that, 20 state attorneys general believe, presents a new opening to get ObamaCare thrown out in whole or in part by the courts. In fact, it may be the wording in Chief Justice John Roberts’s opinion saving ObamaCare in 2012 that dooms it now.
Remember, Roberts sided with the Court’s four liberals in upholding the constitutionality of the mandate by choosing to see the fine – which is what the Obama White House had always called it when making political arguments – as a tax. If you could mandate a behavior and fine someone for not engaging in the behavior, that would be unconstitutional because Congress did not have the authority to force you to purchase a private product. But Congress did have the authority to tax, Roberts said, so it was OK if the fine was really a tax, and buying insurance was simply a way you could earn an exemption from the tax.
The tax is now gone, yet the individual mandate is still in the law. So how is it still constitutional? The 20 states argue it’s not, and the Trump Administration refuses to argue to the contrary:
The Supreme Court ruled in a landmark 2012 opinion that the health law, and specifically the requirement that Americans have health insurance, was constitutional because the penalty for not having coverage was handled by the Internal Revenue Service and fell within Congress’s taxation powers.
But Congress repealed the penalty for not having insurance last year. Republican attorneys generals are arguing in the lawsuit that the ACA and its mandate is unconstitutional now that Congress has repealed that tax-based penalty. The Justice Department agreed with that stance in its brief in asking the court to halt certain provisions of the ACA.
That case, filed in federal district court in the Northern District of Texas, focuses on the individual mandate, which is the ACA’s requirement that most people have health coverage or pay a penalty. Congressional Republicans late last year ended the penalty starting in 2019, but the requirement to have insurance technically remains. It is unenforceable without a penalty, however.
The Justice Department, in its brief, said certain ACA provisions, such as banning insurers from denying coverage to people with pre-existing conditions, are invalid as of Jan. 1 with the mandate-penalty repeal. The U.S. agreed with the plaintiffs that sections “must now be struck down as unconstitutional,” according to the Justice Department brief.
Mr. Sessions, in the letter to congressional leaders, said: “The department in the past has declined to defend a statute in cases in which the president has concluded that the statute is unconstitutional and made manifest that it should not be defended, as is the case here.”
This has people upset because no decision on this is likely until a year from now, which means insurers will continue to deal with uncertainty as they try to set rates and plan for what will happen in health markets. But what’s new about that? ObamaCare has brought nothing but uncertainty and instability. Besides, there’s nothing virtuous about stability when it means you’re maintaining a stable status quo that’s no good.
It is a break from normal practices for an administration to not defend a federal law in court, even one it doesn’t agree with, because the White House usually wants to preserve its own authority to enforce the laws on the books. There is some precedent to the contrary, however, most notably the Obama Administration’s refusal to defend the Defense of Marriage Act in court. What the Trump Administration is doing here is using a legal maneuver to try to get rid of a law no one really likes, but that was passed and preserved in such a way that it’s become almost immune from the political dynamics that would normally spell legislative doom.
Is there merit to the case? The best argument is probably Roberts’s own majority opinion in the 2012 case. If the taxation authority was the only thing saving the individual mandate, and the tax is gone, then how can you argue it’s still constitutional?
I suppose the rejoinder will be that the individual mandate is effectively repealed without a remaining enforcement mechanism, and thus can be said to exist only in the most technical sense. But there’s a problem with that argument. As long ObamaCare remains the law and the mandate is part of the letter of the law, any Congress could pass a new tax connected to it. There’s no penalty for defying it now, but the legal pretense for a new tax connected to it still exists.
Thus, it makes sense to test the constitutionality of the mandate on its own merits, without giving the Justices an out by letting them make it about taxing authority.
Simple question, SCOTUS: Does Congress have the authority to mandate that citizens purchase a product from a private company? Because if it doesn’t, then penalty or no penalty, the mandate has to be struck down.
That said, would such a ruling mean the end of ObamaCare? Almost certainly not, because the law is functioning without the mandate being enforced right now, so it wouldn’t be necessary to throw out the entire law to strike down the mandate. Unless, of course, a majority of the Court wants to take the opportunity to do so. And by all means, be our guests.
Dan writes Christian spiritual warfare novels and does all kinds of other weird things too. Follow all his activity by liking him on Facebook!