Did Judge Tauro Kill Obamacare?

by John R. Graham

On July 8, a federal judge in Boston, Joseph Tauro, took it upon himself to find the Defense of Marriage Act (DOMA) unconstitutional. His decisions in two cases might have unwittingly facilitated the legal challenges to Obamacare.

The decisions have been summarized and criticized in National Review Online (here, here, and here). The constitutional competence of the federal government with respect to homosexual marriage is well beyond my expertise, but having read Mr. Whelan’s commentary and Judge Tauro’s decisions, I think that those who seek to overturn Obamacare in the courts might have just received a couple of rounds of ammunition in their arsenal.

In the first case, concerning benefits of federal employees, Judge Tauro decided that DOMA was unconstitutional on the grounds that it had no rational basis, and that it violated the equal-protection clause of the Fourteenth Amendment. Therefore, the federal government’s denying benefits to homosexual employees’ partners was invalid.

In the second case, the Commonwealth of Massachusetts alleged that DOMA invaded its power to define marriage, because it conditioned the transfer of federal funds to the Commonwealth on a particular definition of marriage. (The examples were federal funding of MassHealth, the Commonwealth’s Medicaid program, and veterans’ cemeteries owned by the Commonwealth.)  Furthermore, the Commonwealth asserted that the U.S. imposed an undue administrative burden on its personnel policies, because the Commonwealth recognized homosexual couples as married but had to deduct their Social Security and Medicare taxes as single persons. In this case, Judge Tauro decided that DOMA violated the equal-protection clause, as well as the Tenth Amendment.

While I appreciate that most of NRO’s readers are likely supporters of traditional marriage, I’d like to suggest that both these decisions are good harbingers for the outcome of anti-Obamacare lawsuits.

First, the court was unequivocal in its assertion that marriage has always been within states’ jurisdiction. If marriage, then why not health insurance? (I recognize that DOMA never asserted federal authority to define marriage, but just the benefits enjoyed by federal employees and beneficiaries of federal entitlements. Nevertheless, Judge Tauro searched the Constitution for an enumerated power to define marriage and could not find it.)

With respect to the equal-protection clause, allow me to alter the points noted by Judge Tauro on pp. 20-21 of his decision, substituting Obamacare for DOMA and health insurance for marriage:

  • Obamacare marks a stark and anomalous departure from the respect and recognition that the federal government has historically afforded to states in health-insurance determinations.
  • Obamacare burdens Plaintiffs’ fundamental right to maintain the integrity of their existing medical relationships, and;
  • The law should consider the uninsured, the class of persons targeted by Obamacare, to be a suspect class.

Yes, I know that there significant differences in precedent between marriage and insurance, especially considering the 1945 Supreme Court decision in U.S. v. South-Eastern Underwriters Association, which asserted that regulating insurance is within federal jurisdiction. However, Congress disagreed and quickly turned this around by passing the McCarran-Ferguson Act, through which it gives most regulatory authority back to the states.

Judge Tauro found that state law trumps federal law even in cases of benefits to federal employees or federal funding of state benefits. Imagine if a state could overturn Obamacare’s mandate to buy health insurance, but keep the federal subsidies for the health-insurance exchanges! That would shake things up.

After that? Repeal and replace.

Critical Condition

NRO’s health-care blog.