There's another court ruling coming soon . . . and ObamaCare might finally be declared unconstitutional

On a fateful day during summer 2012, a lot of conservatives became bitterly disappointed with Chief Justice John Roberts. I was one of them. The Court’s other four conservatives were prepared to throw out the ObamaCare law in its entirety because of the individual mandate.

Congress clearly did not have the authority to mandate that individuals purchase a service from a private company, yet the mandate to do so was identified by ObamaCare’s supporters as critical to the law’s ability to function. If a component so clearly unconstitutional was so crucial to the law’s viability, then the whole law had to go. No jurist who operated in accordance with the Constitution could possibly see it any other way. ObamaCare was toast.

That quite reasonable confidence, based on everything we knew at that point about the makeup of the Court, was shattered when the ruling came down. Chief Justice Roberts joined the Court’s four liberals in saving the law, offering the novel rationale that the fine imposed for not buying health insurance was not actually fine at all, but a tax. In other words, Congress had imposed a tax on Americans – which it had the power to do – but then had offered Americans a way to become exempt from paying the tax (buy health insurance).

This was seen as an astonishing and puzzling opinion. The Obama Administration itself, in selling the law, had insisted the individual mandate fine was not a tax, since that was the more salable political argument at the time. How could Roberts now decide it was a tax after all, and offer this as a rationale for letting a clearly unconstitutional law stand? It made no sense.

Roberts commented that it is not the job of the Supreme Court to save the public from its political choices, which is true, but it is the job of the Supreme Court to strike down unconstitutional acts of Congress. In this instance, it seemed clear that because of Chief Justice Roberts’s position, SCOTUS had failed to do this.

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Yet six years later, it now appears Roberts was laying the breadcrumbs for Congress to clean up its own mess, and the 2017 tax reform bill may prove to be the measure that will ultimately put ObamaCare on the chopping block once and for all.

The tax cut fundamentally altered the individual mandate – and thus, fundamentally altered ObamaCare – by zeroing out the tax for not having health insurance. The tax no longer exists. Yet the mandate language is still in the bill. There is no proscribed penalty for not having health insurance, but the ObamaCare law still says you are required to buy it.

So: Why not just take the mandate language out of the law entirely, instead of just eliminating the tax?

Remember Roberts’s ruling. It was the tax, he said, that kept the individual mandate from making ObamaCare unconstitutional. As long as the tax was in the bill, the mandate was really just about Congress’s ability to levy a tax and offer exemptions. But without the tax, we’re back to Congress mandating that you purchase a service from a private provider. That, Congress does not have the authority to do, and Roberts never claimed in his majority opinion that it did.

You see where this is going? Back to court, where it’s actually already gone, and a ruling may be coming soon:

Last December, congressional Republicans left the mandate on the books, but reduced the tax penalty to $0. Plaintiffs in Texas v. Azar argue that a tax of $0 is no tax at all. Citing Roberts’ reasoning, they assert that the mandate without the tax is unconstitutional.

They further argue that if the mandate falls, the rest of Obamacare must fall with it. Once again they cite Roberts, who looked beyond the law’s “plain meaning” to its “context and structure” which, he said, inextricably bound the individual mandate to the law’s regulations and subsidies.

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Under Roberts’ reasoning, plaintiffs argue, the courts must strike the individual mandate and the law’s subsidies, regulations and Medicaid expansion along with it.

Trump administration lawyers agree that the individual mandate is unconstitutional. They also agree that the pre-existing condition regulations can’t be severed from the mandate, something the Obama administration also asserted. But Justice Department lawyers also argue that the court should leave the subsidies and Medicaid expansion in place.

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The suit is being brought by the attorneys general of 18 states, which include Texas, Wisconsin, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah and West Virginia. All of these states have Republican attorney generals. Seventeen states with Democrat attorney generals have filed briefs in support of the law.

The Trump Administration is not defending the law, which is more extraordinary than you might think. Generally speaking the federal government always defends the legitimacy of its duly passed laws, regardless of which party passed them and whether that same party is currently in power at the time the law is taken to court. And the Trump HHS is actually named as a defendant in the suit. I guess you can read this as evidence that ObamaCare is uniquely awful, or that the Trump Administration is uniquely partisan. I’m sure you’ll pick one or the other.

The judge in the case is Reed Charles O’Connor, a George W. Bush appointee. He heard oral arguments in September and his ruling is expected soon.

Now, if Judge O’Connor rules in favor of the plaintiffs and finds ObamaCare unconstitutional, that is going to touch off a series of appeals. Whatever the Court of Appeals decides will be almost immaterial because the case is almost sure to end up back before the Supreme Court.

What would be the result this time? Assuming no further changes in the makeup of the Court before the case is heard, you’ve got Justices Clarence Thomas and Samuel Alito remaining from the original group that wanted to throw out ObamaCare in 2012. Presumably they still believe the law is unconstitutional. Antonin Scalia and Anthony Kennedy have been replaced by Neil Gorsuch and Brett Kavanaugh. Both of the new Justices are considered conservative, but that doesn’t guarantee a particular ruling on any given case.

Presumably all four liberals would still vote to preserve ObamaCare.

And of course, John Roberts remains Chief Justice, which brings us to an interesting question: When he issued his 2012 ruling, was he just looking for an excuse to save ObamaCare at all costs? Or did he really believe his own reasoning about a fine vs. a tax? Strictly reading his opinion from the original case, it’s hard to see how the mandate can now survive because there is no longer a tax.

But if Roberts is determined to uphold ObamaCare no matter what, he could always argue that the tax technically still exists and was merely lowered to zero. Another Congress, he could argue, could raise it to something else. But that argument makes no sense constitutionally. What if Congress passed a law saying everyone has to own a blender? Would Roberts find that constitutional? Surely not. But Congress could argue that, at some point in the future, it could levy a tax on non-blender owners, and that this possibility makes the blender mandate constitutional.

Does that make any sense? Obviously not, and Roberts would never buy such an argument. Yet this is the type of legal gymnastics he would have to perpetrate to save ObamaCare under its current form.

Would he? It all depends on why he ruled as he did in 2012. And no one but he knows the answer to that.