Obamacare is Still Constitutional
In NFIB v. Sebelius, Justice Roberts opined, correctly in my view, that the so-called “individual mandate” in the ACA, which imposed a penalty tax on those who don’t have health insurance, was a valid exercise of Congress’s taxing power and was, therefore, constitutional. At the same time, Roberts’s opinion included dictum to the effect that an actual mandate was not authorized by the interstate commerce clause. Seizing on that dictum, the idiot Republicans in charge of the Senate came up with a brilliant idea: reduce the penalty tax to zero. That way, there would be no tax on which the supporters of the “mandate” could hang their hats.
In the (unsolicited, unpaid-for and not legal advice) opinion of this former big-city, big-firm lawyer, that dog won’t hunt. For me, the most important takeaway from NFIB v. Sebelius is not that the “mandate” is constitutional, but that the “mandate” isn’t really a mandate at all, because a mandate would be unconstitutional. Instead, the “mandate” language was construed as a definitional adjunct to the taxing provision. Yes, that adjunct is worded as a mandate, and the plaintiffs in the current case include some poor fools who claim they felt obliged to buy insurance to “respect” that mandate. But Justice Roberts made clear in Sebelius that, as a rule of positive law, a mandate would be unconstitutional. If people choose to “obey” it after that pronouncement, that’s on them. As far as SCOTUS was concerned, the only constitutional role for the “mandate” language was to make the related tax provision intelligible. And so that’s all it does.
In the 2017 tax reconciliation process, Congress repealed the penalty tax without also repealing the mandate language or the language declaring the mandate central to the statute’s structure. Congress did not state, however, that it was trying to pass an unconstitutional law. (How could it?) Courts read statutes to be constitutional wherever possible. In this case, there is a very simple constitutional reading of the reconciliation law: it was a tax cut. The “mandate” was a tax, and now the tax is gone. The “mandate” language is still there, but it has no teeth. Having been tagged by the Court as unconstitutional as a mandate in NFIB v. Sebelius, the mandate clause is just “surplusage,” a legal nullity.
The ACA’s provision declaring the mandate central to the law is still there, too, but if SCOTUS presumes that Congress intends to pass constitutional laws, it must conclude that Congress changed its mind on the matter of centrality when it repealed the tax. The mandate was never central, because the mandate was never a mandate. Only the tax can be seen as central, because only the tax was constitutional. Now Congress has repealed the tax that was central to the law, but did not repeal the law. So, how can Congress still believe the tax was central?
Admittedly, we are dealing with dishonest drafting by dishonest politicians. What should SCOTUS do when confronted with total dysfunction in the political branches? My view, and what I take to be Justice Roberts’s conservative view, is that Congress should be treated as if it is doing its job honestly, even when it is quite obviously trying to use the Court as a cat’s paw. I believe the Court will find that Congress has created a stupid healthcare law — one that covers pre-existing conditions without addressing adverse selection — but that passing stupid laws is within Congress’s constitutional remit. (How else do we explain the CFMA 2000? But I digress…).
My views here are hardly “liberal.” Yes, I think Obamacare is a better law than many conservatives do. But on the constitutionality, my thinking aligns very closely with at least one conservative commentator, Prof. Ilya Somin at George Mason University. That’s why I expect the conservative justices to disappoint the Trumpists who want to get rid of Obamacare. (To save time, they can simply adopt Judge King’s dissent in the 5th Circuit’s decision upholding the ridiculous district court ruling.)
Now, as our Feckless Leader likes to say, we’ll see what happens. Les jeux son faits.
[Post-debate update: Amidst the noise of the recent “debate,” one could hear Trump tout as one of his accomplishments “I got rid of the mandate.” The textualists on the Court don’t pay much attention to what politicians say a law does, but still…]