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Judge Declares Obamacare Unconstitutional
Big breaking news out of Texas:
Published in GeneralObamacare was struck down by a Texas federal judge in a ruling that casts uncertainty on insurance coverage for millions of U.S. residents.
The decision Friday finding the Affordable Care Act unconstitutional comes just before the end of a six-week open enrollment period for the program in 2019 and underscores a divide between Republicans who have long sought to invalidate the law and Democrats who fought to keep it in place.
U.S. District Judge Reed O’Connor in Fort Worth agreed with a coalition of Republican states led by Texas that he had to eviscerate the Affordable Care Act, the signature health-care overhaul by President Barack Obama, after Congress last year zeroed out a key provision — the tax penalty for not complying with the requirement to buy insurance. The decision is almost certain to be appealed all the way to the Supreme Court…
Texas and an alliance of 19 states argued to the judge that they’ve been harmed by an increase in the number of people on state-supported insurance rolls. They claimed that when Congress repealed the tax penalty last year, it eliminated the U.S. Supreme Court’s rationale for finding the ACA constitutional in 2012.
The Texas judge agreed.
“The remainder of the ACA is non-severable from the individual mandate, meaning that the Act must be invalidated in whole,” O’Connor wrote.
Chris: I agree with all of that as long as one allows for the fact that many get socialized right now via employer profits and tax deductions in employer groups. People are freaked about having their employer based insurance messed with. That is a problem that has to be dealt with forthrightly. IMO, the ACA dealt with it un-forthrightly.
I’m almost certain back in 2008, McCain wanted to talk about wiping out employer-based insurance and Obama accused him of “wanting to take away your healthcare”. Well Obama did it himself, just slowly.
This makes me crazy. Try explaining this to a Democrat or even half the Republicans.
There can still be an individual mandate even if the attached penalty is removed. Did Congress remove the penalty or the whole mandate? The judge seems to be saying it’s the latter, but the rest of the article is unclear about that.
I think a lot of people above are overthinking this.
The ruling is straightforward.
The only way Roberts could sell the otherwise unconstitutional Obamacare monstrosity is to say it was a tax, even though those sponsoring the original Obamacare bill said over and over it was not a tax. Robert’s ruling and legal reasoning was unbelievably disingenuous. Talk about judicial activism – he introduced the idea against what was said of the act in Congress that it was a tax to save it. Now a Judge after Congress clearly defanged the monstrosity as a tax did the obvious thing and struck the Affordable Care Act down because the phony fig leaf Roberts pasted over the act was ripped away.
Roberts will have to go way out on an unconstitutional limb to save it again.
Congress is not going to pass it again as a tax – there are simple not the votes in the Senate – so Roberts will have to make something new up and really ridiculous to save Obamacare this time and in the process thoroughly destroy any reputation as a fair jurist upholding the Constitution he had left. Obamacare was always government coercion at it’s core, plain and simple, and thus was always unconstitutional.
This is almost certainly a pipe-dream, but…
what if, now that it has been long-declared unconstitutional for reason A, and then ‘defanged’, Roberts then rejects it as unconstitutional for stronger reason B in this new political climate?
No, Congress cannot tell you that you must buy something. Few people, if any, dispute this. When Chrysler was in trouble, Congress did not pass a law stating that every person in the country had to buy a K-car….
This isn’t the day for me to flesh this out but, we have done so many dumb things since World War II, you really do need to universalize / mandate it. My favorite term for it is “politically forced universal coverage” i.e. 50.1% of us point a gun at the other 49.9% and force them to do it. The nice term for it is “universal multi payer.” Democrats never use either one of those terms but that’s the honest way to describe it. Switzerland really messed up their system, and we could learn a ton from that. Singapore did this the right way but there’s no way in hell we can do that now.
The problem with the ACA is that it is like a computer virus–it reaches every corner of the healthcare system. It has now been in place for so long that the healthcare industry has adjusted to it in myriad ways. Massachusetts, for example, spent millions of dollars to revamp the Connector, not one cent of which went to actual healthcare.
Shutting the ACA down once and for all would be great, but, wow, doing so will cause a lot of chaos and uncertainty in the healthcare industry for patients and doctors.
This coming disaster is the reason every intelligent person in the United States told Congress not to do this in the first place.
Agreed. The system’s inherent complexity, and the fact that it’s been around for a long time (employer-based insurance), and that most people are happy with it, means any sort of introduced change will create fear. It does me, just because it’s a change – even though I rationally know that it would ultimately serve me better to buy the “insurance” I need from a truly free market, one that sells across state lines, etc. A market that could offer a panoply of options that I can choose from, with a catastrophic coverage, real insurance, as the cherry on top.
Gov’t mandates. Medicare/Medicaid cost-shifts. Regulations stacked so high as to be incomprehensible to even the experts paid to enact and manage them.
The assumptions one can make from the above are:
A big chunk of the population is lazy.
A big chunk of the population wants someone to fix their problems for them.
A big chunk of the population will be quite happy to cede liberty and choice as long as they don’t have to be responsible for everything.
As long as you have the above, you’ll have politicians continuing to ruin your lives, buying votes with the dollars from the half of the population that actually pays any net income taxes.
I can’t read Roberts’ mind, but it should be noted that the drafters of Obamacare deliberately removed its severability clause. It is normal for a bill (and contracts, too) to have a closing paragraph that states that if any provision is found to be unlawful or otherwise unenforceable, the other provisions remain in effect. Obamacare’s final version doesn’t have that — it was removed so that the court couldn’t invalidate piecemeal. Roberts’ “solution” avoided invalidating anything, just “reinterpreted” the troublesome parts. Yesterday’s ruling’s conclusion follows from this.
I will take this opportunity to post my #1 favorite article for the zillionth time
Government Is How We Steal From Each Other™
I think this is correct. I’ll be interested to hear what the boys on Law Talk say.
Premiums should have nothing but catastrophic risk in their price.
Prepaid medicine–doctor visits basically–should be priced separately as direct primary care or something like that.
Then you’ve got to find a way to cover chronic issues either from your health or an external event.
Then you got to cover aging.
The last two could be done with some type of whole life product.
Subsidize what you need to honestly and transparently out of progressive taxation at the national level. Nothing else.
This twitter analysis is over my head.
That’s a great link. Estimating about 38% of it is over my head, but the bond markets piece and financing public debt is spot on. A relatively recent occurrence, historically.
What it comes down to is, all of the Western central banks operate on discretion instead of rules. Then they either stimulate the economy or “buy” the debt. Now politicians will do every single stupid thing they can to get reelected including lie. When they do this, all of these activities feedback on each other until we run out of money and all of the income and largess is going to the 1 %. Then you get Trump and Bernie and ANTIFA, and the tea party.
They never built hard actuarial stabilizers into Medicare and Social Security. Now the Fed just bails all this stuff out. Everything is like that.
This much centralized government and discretionary central banking is simply unmanageable. It’s ridiculous to tell people to vote better. Actual conservatism and libertarianism doesn’t stand a chance in this environment.
#MAGA
What I take from all this is that it should never have been passed in the first place. It was a wasted and wasteful effort that begat fatally flawed legislation, whose popular provisions could have been legislated in another way. Instead, Democrats, brimming with arrogance for their majority, convinced of their own moral superiority and determined to ram a burdensome law down the throats of the American People, with little transparency and phony cost estimates, purchased votes and used legislative gimmicks to pass the bill. It’s a great lesson for the country, a cautionary tale, and I hope it is never forgotten. To think that we wasted a decade arguing about this makes me sick. No pun intended.
The stupidity of the Congress that passed the ACA was monumental.
Now Congress needs to make sure that it doesn’t sleepwalk us all into something worse, like single-payer.
This is why John McCain’s no vote on the skinny repeal was a crime against humanity. I cannot believe people excuse that guy.
All of the other congresspeople that lied about repealing the ACA should’ve come up with something more creative than what they did. It’s outrageous.
Why “conservatives” aren’t more supportive of Trump or aren’t more libertarian is beyond me.
Instead of being clever, my first thought was that he was being a toady, not wanting to be held guilty of striking down the first significant social legislation by the nation’s first black president. Talk about cold feet. Pass the responsibility to the legislative branches who created the mess. Guess what? The people responded in 2010 and turned over control of the House to the Republicans. There’s something poetic about that turn of events.
Because Trump is not their kind, dear. There are so-called conservatives on this site who would be happier – even today – had Hillary been elected in 2016 than Trump – because he is not their kind. They would be willing to have progressives run the judiciary, to have an economy hobbled by regulation, and a country in despair, as long as Trump was not President. Because he is not their kind.
Ya know what? All of those folks have theirs. They have assured jobs, they have savings, they will go on just fine, no matter how bad things get. If not having Trump, means other people get hurt because the economy is stalled, because Obamacare is eating those other folks’ savings – because someone else’s spouse dies of cancer because medical research came to a dead halt thanks to Obamacare, and because treatment gets delayed because of all of the extra rigmarole Obamacare makes medical providers go through before they can offer treatment? They feel that is too bad. Better that than Trump. Other people suffering because Trump was not elected President or will not be re-elected President is an acceptable cost to them.
This is well said.
This whole thing has been eye opening.
Who is conservative? Bush 2? McCain? Who? All they do is spend and not finish wars.
link
I think this isn’t about the individual mandate being constitutional. I think it is about the mandates on insurers with the mandate removed. That is, it is OK to force insurance companies to offer community rates/guaranteed issue and outlaw all other plans when there a mandate, but it is not legal to force insurance companies to have community rates/guaranteed issue without the mandate. Since the law does not have a severability clause and the company rules are foundational, the whole thing goes.
Great post. Cross subsidization is a menace. The whole ACA is so stupid.
I have difficulty with the whole “insurance” thing. Most health care payments companies today are not really insurers, are they? They’re third party payers, whose industry is boosted by government essentially subsidizing them through employer tax relief. No? In fact, the third party payer takes his cut ,too, thereby raising all the prices. And since thy pass their costs onto a clientele that is more and more under a monopoly system of employers and payers, they encourage costs to rise rather than drop.
But why would that make it unconstitutional? Again I’m not defending the ACA on its merits, just trying to understand the constitutional reasoning in this decision.
It’s already well established that Congress can regulate industries under the Commerce Clause. If Congress has the power to force car companies to sell cars with airbags that meet certain fuel efficiency standards, and has the power to prohibit the sale of light bulbs that don’t meet energy efficiency standards, why wouldn’t they also have the power to prohibit certain types of health insurance plans?
I would say they are a hybrid of both. For routine care, they are essentially just a way to prepay with pretax money. However, if you actually develop a serious health condition that requires hospitalization, surgery, etc. your insurer is on the hook to pay for most of the costs, so it is still genuine insurance, no?
It’s just that loading it up with all the prepaid services (including services you might not want like “free” birth control) makes it more expensive than it would be if it were just an insurance policy that required you to pay for routine care out-of-pocket.
Perhaps. I would quibble with the use of he word “hybrid” (because I don’t know what it means).
There are certainly things that appear to be insurance-type responsibilities that third-party payers assume. And so there are aspects of both bureaucratic manipulating money around, and also, paying for medical costs. But even the medical treatments are curtailed and restricted; you can’t really get adequate medical care as a result of an illness, even if that’s what one would think that’s what the “insurance” is supposed to do.
It seems to me, that insurance was supposed to replace or compensate in dollars for loss of dollars, or in dollars for the fair market value for the loss of material things (correct me if I’m wrong or too vague). But these “insurers” actually are dictating care, care givers, clinics, locations of service and even types of medicines. So I don’t think even at best, that their “insurance” function is really what could be called insurance.
It seems more like an expensive scam with a cheap payout, to me.
The whole thing is a poorly thought out mess from WW2. That is what is going on.