Bench Memos

Law & the Courts

The Latest Obamacare Decision Exposes the Left Again Crying Wolf

(Erin Schaff/Reuters)

Yesterday the Supreme Court handed down its decision in California v. Texas, in which over a dozen states and two individuals sued the federal government in an attempt to have the Affordable Care Act declared unconstitutional. Their argument rested on Congress’s lowering of the statute’s monetary penalty to zero in the Tax Cuts and Jobs Act of 2017. The plaintiffs maintained that Obamacare’s minimum health-coverage requirement had to be struck down because it depended on the continuation of the penalty, which Chief Justice Roberts’s opinion for the Court in National Federation of Independent Business v. Sebelius (2012) recast as constitutional only under Congress’s taxing power, and without that penalty, the entire statute is invalid.

Obamacare has been bad law from the beginning — and Roberts’s 2012 opinion was lawless and indefensible — but conservatives had not expected this particular challenge to Obamacare to succeed, given the rather complicated legal theory relied upon by the states to support their suit. And surely enough, the Court did not reach the merits, instead holding that the plaintiffs lacked standing by a vote of 7–2. The challenged provision had no means of enforcement, and they failed to point to any injury, past or future, that could be traced to enforcement by the federal government.

Justice Alito dissented, joined by Justice Gorsuch, arguing that the states had financial obligations that are traceable to the conduct of the federal government that conferred standing. Justice Thomas joined Justice Breyer’s opinion for the Court and in a concurrence noted that he was not persuaded by what he called the dissent’s “standing-through-inseverability” argument, which the plaintiffs had not raised below. He concluded, “The plaintiffs failed to demonstrate that the harm they suffered is traceable to unlawful conduct. Although this Court has erred twice before in cases involving the Affordable Care Act, it does not err today.”

The predictable outcome of this case did not stop Democrats from deceiving Americans and fear-mongering last fall as the nomination of Justice Barrett was pending. They shamelessly charged she was only nominated because she would strike down the Affordable Care Act. Here are just a few prominent examples:

Joe Biden on September 27, 2020: “It’s no mystery about what’s happening here. President Trump was trying to throw out the Affordable Care Act. He’s been trying to do it for the last four years.”

Kamala Harris on October 13, 2020: “Republicans are scrambling to confirm this nominee as fast as possible because they need one more Trump judge on the bench before Nov. 10 to win and strike down the entire Affordable Care Act.”

Nancy Pelosi on September 28, 2020: “If this nominee is confirmed, millions of families’ health care will be ripped away in the middle of a pandemic that has infected seven million Americans and killed over 200,000 people in our country.”

Demand Justice tweet on September 25, 2020:

That was crazy talk, and the Left knew it. The Court’s latest Obamacare decision exposes the central argument used to tank Justice Barrett’s nomination as yet another instance of the Left crying wolf. Once again, they overplayed their hand and diminished their credibility.


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