When the Supreme Court upheld Obamacare with a crucial vote from John Roberts, it determined that the individual mandate was a tax, and thus could be implemented through Congress’s taxing power. Four dissenting conservative justices would have found the mandate to be unconstitutional — and also that it was a core part of the law and thus “inseverable” from the rest, meaning the entire Affordable Care Act should be struck down.
Now, Republicans have in fact severed the mandate from the rest of the law, reducing the penalty to $0 after this year. A new lawsuit from 20 states against the Trump administration challenges courts to figure out what the old ruling means in light of this development. The suit’s chances are slim, but it does pose a fascinating logic puzzle.
The argument goes like this. Owing to procedural rules in the Senate, Republicans technically didn’t repeal the mandate — it’s still there, only with a $0 penalty. Further, the mandate can’t be a tax if it doesn’t require the collection of any taxes, obliterating the previous ruling’s defense of its constitutionality. And finally, the four conservative justices were right about the severability question, on which the majority didn’t rule: The mandate is a fundamental aspect of the law, and if the mandate itself must go, so must the rest of Obamacare.
This is quite a stretch when seen in light of the current law. A $0 penalty can’t be crucial to the operation of the rest of the policy, so if the mandate is unconstitutional it can be struck down and severed from the rest. But the argument draws directly on the Court’s own precedent concerning why Obamacare is constitutional, as well as an argument about severability that four justices have already endorsed.
My non-lawyer’s guess is that if courts (including Justice Roberts if it comes to that) don’t avoid the issue on technical grounds, they’ll rely on the simple fact that things have changed. Obamacare’s architects certainly thought the mandate was a key ingredient of the law — it was one leg of a “three-legged stool,” needed to prevent a “death spiral” in which healthy people left the exchanges, leaving only the sick and expensive — which obviously supported the idea that it was inseverable from the rest of the law. In fact, the text of the legislation itself stressed the mandate’s importance. But today, with the Congressional Budget Office saying the law will be basically stable without a mandate, and with a new policy from different lawmakers that actually severs the mandate from the rest of the law, that argument is a lot harder to make.
Whatever happens, it will be fun to watch. As Josh Blackman asked, is Jeff Sessions now going to file a brief arguing Obamacare is constitutional?