You may remember that Obamacare survived constitutional scrutiny by the skin of its teeth when the Supreme Court, led by Chief Justice Roberts, held that the penalty the act imposes for failure to buy health insurance is a tax, and therefore is constitutional. That holding discreetly bypassed the fact that the Obama administration had vociferously denied, in court and elsewhere, that the insurance penalty is a tax.
At the time, I defended the court’s decision as a reasonable, good faith interpretation of the relevant law. This was one of the two or three occasions when fellow conservatives heaped opprobrium on me. But that is water over the dam.
How strong is this evening’s ruling? It is premised on the fact that Congress has repealed the penalty assessed against those who decline to buy health insurance:
U.S. District Judge Reed O’Connor in Fort Worth sided with the argument put forward by a coalition of Republican-leaning states, led by Texas, that Obamacare could no longer stand now that there’s no penalty for Americans who don’t buy insurance.
The U.S. Supreme Court had upheld the law in 2012, by classifying the legislation as a tax. But since Congress removed the individual mandate in 2017, O’Connor ruled, there’s no way the ACA can be allowed to stand.
“The Individual Mandate can no longer be fairly read as an exercise of Congress’s Tax Power and is still impermissible under the Interstate Commerce Clause — meaning the Individual Mandate is unconstitutional,” O’Connor wrote. “The Individual Mandate is essential to and inseverable from the remainder of the ACA.”
I haven’t yet read the opinion or the briefs in the case, so my reaction isn’t well-informed. But to me, the logic seems strained: the individual mandate has been legislatively repealed, so therefore the entire statute must fall? Maybe, but that is a pretty big leap.
President Trump hailed the court’s decision two hours ago:
Wow, but not surprisingly, ObamaCare was just ruled UNCONSTITUTIONAL by a highly respected judge in Texas. Great news for America!
— Donald J. Trump (@realDonaldTrump) December 15, 2018
It will be interesting to see how the Democratic Party media cover this court ruling. We know how they cover absurd, indefensible decisions in favor of Trump’s opponents by carefully selected federal judges in, say, Hawaii: TRUMP’S TRAVEL BAN RULED UNCONSTITUTIONAL!!!!
It will be interesting to see how tomorrow’s Democratic Party newspapers deal with the fact that a federal judge, who is on equal footing with the anti-Trump judges whose absurd rulings they have hailed, has declared Obamacare unconstitutional.
PAUL ADDS: One thing the Democratic media will stress is that the Trump administration did not defend the constitutionality of Obamacare in this case. I discussed the decision not to defend it, made by then-Attorney General Sessions, here.
The media cried foul at the time and will cry it even louder now that Obamacare has lost Round 1 of this particular fight. However, as I pointed out, the Obama administration chose not to defend the Defense of Marriage Act (DOMA). So the Trump administration’s decision is not without recent precedent.
There should be a presumption that the Justice Department will defend laws Congress passes and the president (at the time of passage) signs. But that presumption not need prevail in every case. And where, as with Obamacare, the statute passed with no support in the Senate from members of the opposition party, perhaps the presumption in favor of a new administration of a different party defending the law should be weaker. (DOMA passed with overwhelming bipartisan support.)
As to the merits of this case, I take no position until I’ve read more. However, it’s clear that when Congress removed the individual mandate in 2017, its intention was to retain the rest of Obamacare. We know this because efforts to repeal Obamacare itself failed in the Senate.
The odds, I think, are against Chief Justice Roberts agreeing that Obamacare collapses. And without his vote, the challenge to its constitutionality will fall short if/when the case is heard by the Supreme Court.
It may also worth noting that Obamacare has become fairly popular with the electorate. Health care seems to have been a winning issue for the Democrats in the recent elections. If the judiciary were to overturn Obamacare — meaning no more ban on denying coverage due to preexisting conditions, for example — Republicans might suffer the political consequences in 2020.