Why the Affordable Care Act will be declared unconstitutional

by the Supreme Court

I believe in choice. I’m not talking about killing unborn babies. I’m referring to the right to keep government out of health care decisions. Now it seems that the Affordable Care Act (ACA), aka. Obamacare, may ultimately be struck down by the Supreme Court. On December 14, 2018, in Texas, et. al. v. USA, United States District Judge Reed O’Conner ruled the entire Affordable Care Act to be unconstitutional. Here is the history, step-by-step.

1.       The Patient Protection and Affordable Care Act (PPACA) was signed into law by President Obama March 23, 2010.

2.       The ACA was first tested by NFIB v. Sebelius, 567 U.S. 519 (2012). In that decision, the Supreme Court made two key observations:

a.       a mandate that most Americans obtain health insurance is unconstitutional, HOWEVER

b.      by interpreting the mandate to be part-and-parcel of a tax penalty, the Court ruled that the mandate was a lawful exercise of the taxing power of Congress, and thus the entire ACA was constitutional.

3.       On December 22, 2017, the President signed into law the Tax Cuts and Jobs Act of 2017, which eliminated the tax penalty of the ACA, eliminating the ACA’s protections of 2. b. above.

4.       On February 26, 2018 Texas and seventeen other states filed a complaint against the United States alleging that the ACA is unconstitutional absent the individual mandate taxing provision.

5.       On Friday, Judge O’Conner:

a.        reaffirmed the Supreme Courts prior ruling that, absent the taxing provision, the individual mandate is unconstitutional.

b.      reaffirmed, as previously decided in NFIB v. Sebelius and stated by Congress numerous times, the individual mandate is inseparable from the rest of the ACA.

6.       Thus, Texas, et. al. v. United States struck down the entire ACA as unconstitutional. In the words of the ruling, “the Court … declares the Individual Mandate, 26 U.S.C. § 5000A(a), UNCONSTITUTIONAL. Further, the Court declares the remaining provisions of the ACA … are INSEVERABLE and therefore INVALID.”

For a detailed analysis of the Friday ruling, see the excellent article, “FederalJudge kills Obamacare” by  William A. Jacobson.

So now, your faithful seer, with unlimited wisdom and armed with his trusty crystal ball, will predict:

1.       Friday’s decision will be appealed to the Supreme Court, and

2.       the Supreme Court will (must) uphold Judge O’Conner’s ruling. For the latest District Court decision to be overturned,

a.       Congress would have to reenact the taxing provision of the individual mandate, and as long as Trump is president or one house of Congress is majority Republican, that will not happen, or

b.      SCOTUS would have to revoke their own prior decision that on its face an individual mandate is unconstitutional,  and

c.       SCOTUS would have to revoke their prior recognition (all nine Justices) that the Individual Mandate of the ACA is inseverable from the remainder of the Act.

Both of these paths seem extremely unlikely. This is a big win for personal liberty and against ever-increasing government overreach.

Footnote: Did the Republicans in Congress knowingly remove the taxing provision of the ACA to sabotage the Act? What do you think?

References:

William A. Jacobson , “Federal Judge kills Obamacare”, Legal Insurrection, 12/14/2018
https://legalinsurrection.com/2018/12/federal-judge-kills-obamacare/