Jon Snow. Glenn from The Walking Dead. Obamacare.
All have died before, only to return for another season. And the latest “fatal” blow delivered by a Texas judge to the Affordable Care Act is no different. Obamacare will survive.
In a sense, the decision from U.S. District Judge Reed O’Connor is straightforward. The ACA was upheld by the Supreme Court because its “individual mandate”—the requirement to either buy insurance or pay a penalty fee—was a kind of tax. But in 2017, Congress repealed the fee provision. So now the ACA can’t be construed as a tax. Therefore it’s unconstitutional.
ADVERTISEMENT
Simple enough, but there are three things about the decision (yet another high-profile case called Texas v. United States) that are very strange, and that will probably lead to it being overturned.
First, the result is contrary to judicial canons of interpretation. The 2017 tax cuts didn’t repeal the ACA. On the contrary, the non-repeal of the ACA was perhaps the most notable failure of the 115th Congress. It was the Republicans’ signature non-achievement. So how could a Congress that just decided not to repeal the ACA… repeal the ACA?
Normally, judges take this into account. If Congress just decided not to do X, then judges tend not to find that they did X by accident. Judge O’Connor didn’t.
Moreover, the 2017 tax cut, whether for good or ill, was an across-the-board tax cut that passed Congress on that basis. Yes, it included this particular provision, but there’s not evidence in the record that suggests that Congress was intending the tax bill to be a back-door repeal of Obamacare. On the contrary, they tried to repeal Obamacare through the front door, and didn’t. But Judge O’Connor suggests they did it by accident.
Second, to reach this result, Judge O’Connor had to do a bit of judicial Jenga.
In 2010, Chief Justice Roberts cast the deciding vote to uphold the ACA. His somewhat quixotic opinion held that Obamacare was unconstitutional under the commerce clause (horrifying liberals) but constitutional under the tax power (horrifying conservatives).
Now, no other justice joined that full opinion. The four conservatives (including Justice Kennedy) dissented outright, and the four liberals concurred only in the result.
But in an unnecessary and questionable bit of judicial reasoning, Judge O’Connor notes that the four dissenters also held the ACA to be unconstitutional under the Commerce Clause, meaning that a majority of the Supreme Court held that view.
That’s true as a matter of philosophy, but not of Supreme Court precedent. Judge O’Connor’s opinion should have noted that this issue is undecided and requested guidance from the Supreme Court on this unresolved question.
So, not only did Judge O’Connor read the 2017 tax bill as repealing something Congress had just not repealed, he also read it by piecing together different court opinions.
Third and finally, Judge O’Connor’s reasoning means that had Congress left in a tax of just one cent for people who hadn’t bought insurance, the entire individual mandate and ACA would be constitutional. Does that make sense? At the very least, this seems to be the tail wagging the dog: the entire law falls down because of one supporting provision.
Now, it’s fair to blame Chief Justice Roberts, rather than Judge O’Connor, for that result. It was the chief justice who, to shift metaphors for a moment, hung the entire constitutionality of the ACA on the slender thread of the tax penalty. A more coherent decision would have been to read the commerce clause in light of 21st century economics rather than the 18th. We are all already enmeshed in the healthcare system, every last American citizen, whether we buy insurance or not. Our actions, by commission or omission, affect the rest of that system.
Thus the great transgression of the individual mandate—compelling a citizen to buy insurance—is not really that great. It’s an illusion, the distinction between being compelled to buy insurance and not, because there is already one, gargantuan health system that is networked, connected, and impacted by individual actions. One might as well complain that the government can force me to stop at red lights but not drive at green ones. The distinction is a myth.
But that is not what Chief Justice Roberts said, and so Judge O’Connor was operating in a framework that is already convoluted and contorted.
It’s quite likely that this case will end up back at the Supreme Court. The Fifth Circuit is a notoriously conservative appellate circuit, one that has grown even more so under Trump. Notwithstanding the peculiarities of Judge O’Connor’s decision, it’s hard to see a panel of the Fifth Circuit ruling in favor of Obamacare.
Moreover, it’s possible that the alignment of Supreme Court justices will be the same as in 2010. Since then, Justice Gorsuch has replaced Justice Scalia, and Justice Kavanaugh has replaced Justice Kennedy. But those were two “no” votes that will likely remain “no” votes. The decision may again fall to Chief Justice Roberts.
In the meantime, the primary effect of this latest Texas v. United States will likely be political. Trump has tweeted his delight, and numerous liberal advocacy groups have released anguished press releases.
The real question is one that President Obama posed a few years ago: whether Americans have gotten to like their Obamacare, and won’t take kindly to politicians taking it away. Already, coverage for pre-existing conditions is starting to look like a political “third rail”—touch it, and you get electrocuted. Indeed, in the 2018 midterms, some Republicans actually ran on the topsy-turvy message that Democrats were trying to take away that coverage and Republicans were trying to save it—the exact, 180-degree opposite of reality.
But it’s economically impossible to force for-profit insurance companies to cover people regardless of pre-existing conditions unless healthy people, too, participate in the insurance market. And that requires the individual mandate. You just can’t get the good stuff without the bad.
In fact, one last irony of the healthcare debate is that public opinion is moving so quickly to the left on healthcare (although obviously not on other issues), the ACA’s provisions may go back to what they were originally: a Republican idea. Democrats are coalescing around ‘Medicare for All’ (a more palatable way of saying ‘single-payer’) which is supported by around 70 percent of Americans. And unless some mechanism is created that can prop up the for-profit insurance markets—like the individual mandate—Medicare for All starts to look a lot more sensible than the Romney-Obama ACA.
Judge O’Connor’s decision may look like a battle won by the right. But if it succeeds in destroying Obamacare, the left will have won the war.
