This sounds earth-shattering, and it could be, but it’s not a gigantic surprise. We told you a mere three weeks ago that this was coming.
And yes, it really does have serious potential to result in ObamaCare being thrown out entirely. But that isn’t going to happen until the Supreme Court gets the case and rules on it, which means the earliest we’re likely to see the issue settled once and for all is June 2019.
For now, we’ve got a case in which the Republican attorneys general of 20 states are battling the Democrat attorneys general of 17 states over the constitutionality of the individual mandate, and the Republicans have just won round one. We’re now on to round two as the Democrats appeal the ruling to the Fifth Circuit Court of Appeals.
The crux of the case is whether Congress has the authority to mandate that individuals purchase health insurance, and it’s important to understand that – contrary to what you might think – SCOTUS has already weighed in on that question, and the verdict was not good for the defenders of ObamaCare:
O’Connor ruled that under the logic of the landmark 2012 Supreme Court ruling that upheld the law, the individual mandate, which required that most Americans obtain health insurance or pay a tax, is now unconstitutional.
In the 2012 ruling, a majority of the justices concluded that the individual mandate unconstitutionally imposed a requirement that Americans buy insurance. However, a different majority held the mandate amounted to a constitutional tax penalty.
On Friday, O’Connor ruled that after Trump signed a $1.5 trillion tax bill passed by Congress last year that eliminated the penalties, the individual mandate could no longer be considered constitutional.
He said because the individual mandate was an “essential” part of Obamacare, the entire law, rather than just the individual mandate, was unconstitutional.
The passage in bold above is the key to this whole thing.
Chief Justice John Roberts did join the four liberal Justices in saving the law, but he also joined the conservatives in deciding that the individual mandate is unconstitutional. Roberts found in favor of keeping the law in place by labeling the penalty for not buying health insurance as a “tax” rather than as a “fine,” which meant it could be legal if you looked at it this way:
Congress imposes a tax, which it has the power to do, but gives you a way to be exempt from the tax, which is to purchase health insurance.
That was a real stretch because Obama Administration officials had been running to every talk show for months insisting that it was a fine and not a tax because that played better politically. As soon as they needed it to be a tax to preserve the law legally, suddenly it was a tax. At least that’s how Chief Justice Roberts decided to bail them out.
So the argument of the 20 Republican AGs is simple: Now that the penalty for noncompliance with the individual mandate has been repealed as part of the 2017 tax reform law, there is no longer the matter of a tax to uphold. You simply have a mandate, and in the 2012 ruling, a Supreme Court majority including Chief Justice Roberts already ruled that the mandate is unconstitutional.
Thus, because the individual mandate was put forth by the law’s authors as central to the law’s functionality, the whole law must now be struck down. That’s the argument and Judge O’Connor agreed.
I don’t know how the Fifth Circuit Court of Appeals will rule but it’s almost irrelevant because this is going to end up at the Supreme Court. And once again Chief Justice Roberts is likely to be the deciding vote. What will he do?
Obviously one path for him is to do exactly what the Republican state AGs are saying he should do, which is to stay true to his earlier ruling about the individual mandate being unconstitutional and join the rest of the conservative Justices in striking down the law in its entirety. (Presumably Justices Gorsuch and Kavanaugh, who were not on the Court in 2012, would join the conservatives in seeing it this way, although I suppose there’s no guarantee of that.)
But does Chief Justice Roberts have to strike down ObamaCare entirely to honor the precedent of his 2012 decision about the individual mandate being unconstitutional? I think he should, but I’m not sure he will see it that way. He could rule that, essentially, the individual mandate is already gone. By eliminating the penalty, he could decide, Congress made the mandate toothless and thus completely meaningless. He could further rule that because there now is no individual mandate, and yet the law continues to function, it’s not true that you have to strike down the entire law if the mandate is gone.
He could also rule that Congress could use its taxing power any time it likes to reinstate the tax he once ruled legal, and to reinstate the condition of buying health insurance as a way of becoming exempt from the tax. In the meantime, he could say, although the law may be far less effective without the individual mandate, there is nothing in the parts that are left that render it inherently unconstitutional and thus it must be allowed to stand.
I’m not trying to give Chief Justice Roberts a roadmap to uphold ObamaCare, but what I’m telling you here is that Roberts seemed determined in 2012 not to throw out the law, and he declared quite clearly that he did not believe it was the Court’s job to rescue the voters from their political choices.
The fact of the matter is the Republican-controlled Congress that is now coming to an end had an opportunity to repeal ObamaCare and failed to do so. Roberts may well believe that, if the political process wasn’t prepared to get rid of the law, the Court should not be expected to do it.
That said, the individual mandate is still in the law, and that’s why Judge O’Connor ruled that the whole thing is unconstitutional. Chief Justice Roberts is already on record saying the individual mandate is unconstitutional, and the mechanism he used to save it in 2012 is now gone by a subsequent act of Congress.
I’d like to say it’s hard to see how he saves it now. But I just showed you how he might do it. I hope he doesn’t.