The Corner

Health Care

Don’t Cheer (or Panic) over That Obamacare Ruling

A judge has ruled Obamacare unconstitutional. This basically doesn’t mean anything.

For one thing, there’s no injunction stopping the law in the short term. For another, the suit has little chance of surviving the appeals process because the argument behind it is weak. Even reliable Obamacare opponents in the conservative legal movement have generally distanced themselves from it.

Basically, when Republicans repealed the individual mandate in the tax-reform bill, they didn’t quite repeal it; they just reduced the penalty to $0. (This was all they could do under certain procedural rules without opening the door to a filibuster.) Since the Supreme Court upheld the mandate in 2012 on the grounds that it was a tax, the lawsuit argues, this makes the mandate unconstitutional: A $0 penalty can’t be a tax. And since Congress also left “findings” in Obamacare saying the mandate is important to the operation of the rest of the law, the suit claims the mandate is not “severable” and the entire law should be struck down.

There are huge problems here. For starters there’s the question of whether anyone even has standing to challenge a provision that has deliberately been made completely unenforceable. On top of that, no one on this entire planet, in the Congresses that wrote the law or not, actually believes that a mandate enforced by a $0 penalty is so important that the rest of the law can’t function without it. If Congress believed the mandate was important, it wouldn’t have eliminated the penalty giving it effect, and Republican politicians including the president wouldn’t have run around claiming they’d “repealed” it.

I don’t see the higher courts destroying a huge piece of legislation on such reasoning, even if a district judge bought into it yesterday. For a more granular and sympathetic analysis of the ruling, though, I encourage you to check out this thread from Josh Blackman.

Most Popular

Mel Gibson’s Beastmode

Late-period Mel Gibson is probably the best Mel Gibson; in film after film after film he plays ornery old bastards with such conviction that each successive outing feels like a personal trip to the confessional. He doesn’t need the money anymore, and most of these roles are in indie movies that pay very little ... Read More

Mel Gibson’s Beastmode

Late-period Mel Gibson is probably the best Mel Gibson; in film after film after film he plays ornery old bastards with such conviction that each successive outing feels like a personal trip to the confessional. He doesn’t need the money anymore, and most of these roles are in indie movies that pay very little ... Read More
Culture

No One Is Ever Woke Enough

Closing out the week: The Harper’s letter calling for freedom of expression demonstrates that no one is ever “woke” enough, and that any institution that tries to make peace with the perpetually aggrieved eventually becomes dysfunctional; the value of Hamilton as a litmus test of the limits of cancel ... Read More
Culture

No One Is Ever Woke Enough

Closing out the week: The Harper’s letter calling for freedom of expression demonstrates that no one is ever “woke” enough, and that any institution that tries to make peace with the perpetually aggrieved eventually becomes dysfunctional; the value of Hamilton as a litmus test of the limits of cancel ... Read More
Culture

Mark Zuckerberg Is Right

Mark Zuckerberg clearly hasn’t gotten the memo. The founder of Facebook persists in defending free expression, even though free speech has fallen decidedly out of fashion. His reward for adhering to what once would have been a commonsensical, if not banal, view of the value of the free exchange of ideas ... Read More
Culture

Mark Zuckerberg Is Right

Mark Zuckerberg clearly hasn’t gotten the memo. The founder of Facebook persists in defending free expression, even though free speech has fallen decidedly out of fashion. His reward for adhering to what once would have been a commonsensical, if not banal, view of the value of the free exchange of ideas ... Read More