As you’ve probably heard, there’s a lawsuit claiming that Obamacare’s individual mandate — which is effectively repealed starting next year, its penalty set to $0 — is not only unconstitutional but “inseverable” from the rest of the law, meaning the entire Affordable Care Act must be struck down. A federal judge in Texas recently agreed. The Editors, Yuval Levin, and I have all explained why this is silly at best, but the suit is making its way through the court system nonetheless.
Over at The Atlantic, Nicholas Bagley and Richard Primus urge Congress to put an end to it:
Congress could fix the problem by saving, severing, or sinking the mandate. First, Congress could make the mandate constitutional again by raising the penalty for not having insurance from zero dollars, where Congress set it in 2017, to one dollar. Second, Congress could declare the individual mandate severable from all other parts of the ACA. Third, it could repeal the mandate — something that might once have wrecked the ACA but that now would have little or no effect on the rest of the regulatory framework.
I’m usually the first person in line to tell Congress to do its job and fix problems with the laws it makes, but let’s be real here: This ain’t gonna happen.
Democrats have no real reason to help Republicans out of this mess. The lawsuit isn’t actually going to succeed, and in the meantime they can use it to accuse the GOP of trying to gut protections for people with preexisting conditions. Red-state attorneys general launched the suit, and the Trump administration has backed much of it.
Republicans, meanwhile, are not going to vote to save Obamacare. They could try to sell it as a vote “against the individual mandate,” but the individual mandate is already a nullity, and the sole purpose of fully striking its text from the law would be to make sure the ACA as a whole is upheld in court.
Trump himself gloated about the Texas court decision, by the way, and likely wouldn’t sign such a law.
Wow, but not surprisingly, ObamaCare was just ruled UNCONSTITUTIONAL by a highly respected judge in Texas. Great news for America!
— Donald J. Trump (@realDonaldTrump) December 15, 2018