When President Trump signed tax reform into law the individual mandate to Obamacare, the fine – that taxing power Chief Justice Roberts claimed gave Congress the power to seize regulatory control over health insurance – ceased to exist. The tax is gone. It’s dead. No more.
If there is no tax, has the SCOTUS ruling that saved it lost its teeth?
Twenty States Attorney General think so and have challenged the constitutionality of Obamacare in its now neutered state.
On Monday, twenty Republican-controlled states filed a lawsuit challenging the constitutionality of the Affordable Care Act’s individual mandate, which requires most Americans to purchase government-approved health insurance. The full text of the complaint is available here. The lawsuit contends that, if the mandate is invalidated, the Court must also strike down the entire Affordable Care Act, because the rest of the ACA cannot be “severed” from the mandate.
There will be more analysis to come. But it is significant that both Ilya and Josh agree that the insurance “requirement” is now clearly unconstitutional under Chief Justice Roberts’ “saving construction” approach. If a court so holds, the entire statute would then be in the same posture as it would have been if he had sided with the dissenting justices in the first place. In that eventuality, four justices thought the whole law was inseverable, and the Obama administration conceded the mandate would be inseverable from at least two key provisions of the Act. So the key issue in the new litigation is likely to be whether the fact that Congress zeroed out the penalty somehow changed this analysis such that the mandate is now severable from the rest of the ACA when it was not before.
Twenty AG’s are banking on this as a way to toss the unaffordable, regulatory nightmare of the Affordable Care Act into the dustbin of history.
Mr. Obama won’t be happy if they are right.