John wrote last night about the ruling by a federal judge in Texas that Obamacare is unconstitutional in its entirety. Judge Reed O’Connor reasoned: (1) because Congress has repealed the penalty assessed against those who decline to buy health insurance, the Individual Mandate can no longer be fairly read as an exercise of Congress’s Tax Power; (2) because the Individual Mandate could only be justified constitutionally as an exercise of the Tax Power, the Mandate is now unconstitutional; (3) because the Individual Mandate is “inseverable” from the entirety of Obamacare, the entire Act must fall.
Professor Josh Blackman has followed closely the long war over the constitutionality of Obamacare. In this thread, he provides a close analysis of Judge O’Connor’s decision. In this post for the Volokh Conspiracy, he places the decision in the broader context of Obamacare litigation. He also states his disagreement with the judge’s conclusion that the Individual Mandate is not severable.
Ilya Somin and Jonathan Adler, writing in separate posts at the Volokh Conspiracy, agree with Blackman that Judge O’Connor got it wrong on severability. Adler is convinced the ruling will not survive appeal. Somin believes it won’t, but is less confident of this than Adler.
What if Judge O’Connor’s view prevails and Obamacare is deemed unconstitutional? Blackman, who seems to find this outcome not all that unlikely, writes:
If the Supreme Court were to hold that the law’s GI and CR provisions were unconstitutional, I suspect that Congress would re-enact those provisions with broad bipartisan support. There is no constitutional problem with Congress enacting these standalone insurance reforms, without the mandate. Indeed, to avoid any disruption, the Supreme Court could delay its ruling by a single tax year to give Congress a chance to act. (Justice Alito floated this option during oral arguments in King v. Burwell.)
Moreover, states can enact their own GI [guaranteed issue] and CR [community rating] provisions as a fall back in the event that Texas is victorious. Many states already have restrictions that are more protective of those under the ACA. Finally, unlike with King v. Burwell, where states were at risk of losing millions in federal funding, here the states can be proactive and ensure no gaps in coverage. In other words, now that Congress zeroed out the penalty, the political fallout from a decision declaring that GI and CR were also unconstitutional would likely be short-lived.
Short-lived, maybe. Intense, certainly.