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Basically, when Republicans repealed the individual mandate in the tax-reform bill, they didn’t quite repeal it; they just reduced the penalty to $0.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penalty giving it effect, and Republican politicians including the president wouldn’t have run around claiming they’d “repealed” it.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.

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