Here is a sentence I had not expected to see ever again: A coalition of 20 states has filed a lawsuit alleging ObamaCare is unconstitutional.
This case is going to the Supreme Court.
The lawsuit against the federal government is being led by Republican Attorneys General Ken Paxton of Texas and Brad Schimel of Wisconsin. The case was filed in the U.S. District Court in the Northern District of Texas on Monday.
They are claiming that since the Republicans in Congress eliminated the tax penalty associated with the individual mandate, through the passage of the reconciliation based tax reform bill, that ObamaCare itself is no longer constitutional.
The reason they say it is now unconstitutional?
They are claiming that the much derided 2012 Supreme Court 5-4 decision no longer applies because Congress itself has removed the taxing portion of the individual mandate. With no Congressional taxation authority behind the individual mandate, the law is no longer enforceable.
In the 2012 case, the majority opinion authored by the Supreme Court Chief Justice John Roberts declared that the individual mandate was only constitutional because it was a tax and therefore legal under Congress’ implicit power to levy taxes on the American people. The lawsuit claims that the 2012 case, National Federation of Independent Businesses vs. Sebelius, ruling does not provide for a commerce clause individual mandate.
The multi-state lawsuit contends that in order to obtain the ruling for the constitutionality of the individual mandate, the court declared three questions they believe to govern this situation: What authority did Congress have to compel citizens to buy health insurance, was there was in fact an actual mandate by Congress to purchase health insurance, and finally was it derived under the authority of taxation or the commerce clause?
“The ACA’s unconstitutionality follows from three holdings in NFIB and the aforementioned provision in the Tax Cuts and Jobs Act of 2017. First, a majority of the Supreme Court held that Congress lacks the constitutional authority to compel citizens to purchase health insurance,” the lawsuit states. “Second, the same majority concluded that the ACA included a mandate to buy health insurance that applies to most (but not all) citizens, and a separate tax penalty that applies to most (but not all) of those required to buy insurance under the mandate.”
“Third, a different majority held that, as a matter of constitutional avoidance, it was ‘fairly possible’ to reinterpret the mandate and tax penalty as a single ‘tax,’ which Congress may enact under its taxing authority.”
The only saving grace for the Obamacare bill was that a majority agreed with John Roberts’ opinion that Congress was using the wrong authority when they passed the law and stated that the individual mandate was a tax. Five justices, including himself, already reasoned that the Congress does not have the power to compel citizens under the commerce clause.
Now that there is no taxable portion of the bill in place any longer, the Supreme Court must take down the entire law, the lawsuit contends. “After all, if a provision raises no revenue, it cannot be said ‘to pay the Debts and provide for the common Defence and general Welfare of the United States.'”
“Pursuant to the Tax Cuts and Jobs Act of 2017, starting in 2019, the tax penalty is eliminated by reducing the tax to zero. The individual mandate itself, however, remains. But because the tax penalty provision in the ACA no longer raises any revenue, the Supreme Court’s avoidance reading is no longer possible.”
Unfortunately for the Chief Justice, the lawsuit contends that he will no longer be able to use constitutional avoidance as a fallback option and will now have to rule on the constitutionality of the government being able to force its citizens to purchase a healthcare product.
The lawsuit quotes the Congressional Budget Office, where they explain that the individual mandate was not eliminated, but instead just the monetary penalty was.
It is actually almost impossible for Congress to repeal any law with the reconciliation process they used to “repeal” the individual mandate tax. It would violate the Byrd rule, which would have stricken any attempt at actually repealing the law as not “germane” to the budgeting process.
In passing the individual mandate tax elimination, Mitch McConnell may have inadvertently triggered the ultimate repeal by the courts.
“Because the tax penalty raises $0, it lacks “the essential feature of any tax,” and the avoidance interpretation adopted in NFIB to save the individual mandate from its unconstitutionality is no longer ‘fairly possible,'” the lawsuit adds. “Following the enactment of the Tax Cuts and Jobs Act of 2017, the country is left with an individual mandate to buy health insurance that lacks any constitutional basis. The invalidity of the ACA’s core provision (individual mandate) thus follows from NFIB.”
And the states’ lawsuit takes the case a step further and declares that since Congress has made it clear on many occasions that the individual mandate was critical to the Obamacare law, the rest of the law must also be struck down:
“Once the heart of the ACA—the individual mandate—is declared unconstitutional, the remainder of the ACA must also fall.”
The lawsuit points to the removal of the mandate would “undercut Federal regulation of the health insurance market” and that “the guaranteed issue and community rating requirements would not work without the coverage requirement.”
“Guaranteed issue” requires an mandate to purchase insurance otherwise the only people who will be on the insurance markets will be the sick and the old as the insurance companies are forced to provide insurance to them regardless of the costs it might bring to the insurance company. In short order, most insurance companies will be out of business as they will no longer be able to stay even remotely profitable under a scheme that is currently in force.
The case contends that since the remainder of Obamacare would not “function in a manner consistent with the intent of Congress,” the whole Affordable Care Act legislation should fall with the mandate itself.
The case is pretty ironclad at the moment. There are only three ways this case ends, since Gorsuch has been voting like Antonin Scalia, and they all come down to the Chief Justice, John Roberts:
- John Roberts completely contradicts himself from 2012 and states that in fact the Congress does have the power to compel the citizens of the United States to purchase health insurance. The insurance market is then destroyed.
- John Roberts declares that Congress was wrong again and that the individual mandate is severable from the rest of the law, striking down just the mandate, leaving everything else intact. The insurance market is then destroyed.
- John Roberts declares that the mandate is struck down and that the bill is not severable from the mandate and is therefore also struck down. The insurance market reverts to the market before the enactment of the Obamacare legislation.
The Democrats have totally immobilized any progress through Congress because of their stranglehold over the Senate through the use of the filibuster.
Majority Leader and Republican Mitch McConnell is steadfastly refusing to implement any reforms of the filibuster to break the self imposed logjam while the rest of the country suffers under the deteriorating insurance structure and healthcare system.
The only way the average American’s healthcare system is saved from catastrophic failure is for John Roberts to strike down the law as he should have in 2012. The system cannot continue under the current regime and Congress is not going to be willing or able to fix it anytime soon.