The Corner

Health Care

Constitutional Kabuki: Health Care Edition

On Monday, the Trump Administration formally changed its position in ongoing litigation about the future of Obamacare.

The details of the case have been well covered at NRO by Robert VerBruggen in recent months (for instance, here). Basically, several states are arguing that, because the 2017 tax bill zeroed out the individual-mandate penalty in Obamacare but left the language of the mandate in the law, the mandate can no longer be considered a tax and that, since the mandate was upheld by the Supreme Court in 2012 on the basis of its being a tax, it now can no longer be upheld. Because the mandate was central to the policy logic of the whole of Obamacare, moreover, they argue that if it is now struck down as unconstitutional the entirety of the law should be too. In December, a district-court judge in Texas ruled for the states, and the case is now before the Fifth Circuit Court of Appeals.

Like Robert, and like NR’s editors too, I think the argument (particularly about severability) doesn’t make sense. I’d repeat what I wrote in December:

Chief Justice Roberts’s 2012 ruling that the individual mandate is constitutionally sustainable as a tax was silly to begin with, but it is the ruling precedent. The idea that zeroing out the tax (which Congress did last year) thereby renders the now inoperative mandate unconstitutional is dubious but trivial—as the provision is inoperative anyway. But the notion that this inoperative mandate is actually necessary for the functioning of the rest of the system created by the statute—a notion that rests on applying the intent of the 2010 Congress over that of the 2017 Congress when considering the situation created by the 2017 Congress’s act of legislation—well that doesn’t even merit being called silly. It’s ridiculous.

Last year, the administration partially backed the states—arguing that the circumstances created by the zeroing out of the individual mandate did render the mandate unconstitutional but that only a few provisions of the law—most notably the so-called “guaranteed issue” and “community rating” provisions, prohibiting insurers from refusing to sell and from charging higher premiums to consumers based on their health status—are in fact dependent on the mandate in the scheme established by the original statute and so should fall if it falls. This still doesn’t make sense (since, again, Congress zeroed out the mandate but left the rest of the law intact), but it’s at least a little less absurd than the claim that Congress considers the entire rest of the law inseverable from a provision from which Congress plainly severed it.

But on Monday, the administration notified the court that it had changed its view, and would now fully back the states’ claim that the entire law should be thrown out with the mandate.

You won’t find many people more opposed to Obamacare than I am, but the argument being advanced here just doesn’t add up. And worse, it is enabling another round of a perverse kabuki dance on health care in every part of our constitutional system.

In 2017, Republicans in Congress made an effort to repeal and replace Obamacare, but in the end they did not have the votes to get it done. The administration played its own significant part in undermining that process—especially through mixed signals from the president at every key moment. Now, some in the administration seem eager to compel some kind of action by manufacturing a crisis that will force Congress’s hand. It doesn’t look like the administration’s lawyers buy the arguments the states are making on the merits—yesterday, Politico reported that both the Attorney General and the Secretary of HHS opposed this week’s change in the administration’s official position in court. And it’s not at all clear why the people who did push this change think that forcing Congress’s hand just now will result in a better policy outcome (especially in a divided Congress).

In Congress, meanwhile, Republicans are angry at being put in this position because they would much rather go back to pretending they just hate Obamacare but can’t do anything about it. And Democrats (with characteristically balanced support from the New York Times and other journalists) are telling all kinds of horror stories about what will happen if the law is thrown out.

This, too, amounts to a kind of bipartisan kabuki because the Congress could resolve the underlying issue in this case with a simple, one-sentence bill formally eliminating (rather than just zeroing out) the individual mandate by striking Section 5000A of the Internal Revenue Code of 1986. Such a bill would have no practical effect on the health-care system or federal finances, because the mandate has already been zeroed out, so no one in either party should have any particular reason to oppose it. And it would render the case moot, so if people worry about the implications of a decision for the states they should want to enact it.

What we have instead are some states pretending to take seriously the ridiculous logic of a politically-distorted 2012 Supreme Court opinion to make the absurd argument that Congress’s intent in 2010 should override its intent in 2017, the administration pretending to agree with this, and Congress pretending there is nothing it can do about it. Someone will need to step in and restore the dignity of our constitutional system—and it ought to be the Congress.

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.

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