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During the hearings on Amy Coney Barrett’s nomination to the Supreme Court, one constant theme was whether her vote would jeopardize the Affordable Care Act. From the time of its inception, the ACA was a grievous social and economic mistake. Thereafter, Chief Justice John Roberts’s decision in NFIB v. Sebelius (2012) was a constitutional train wreck. Notwithstanding this sorry history, the most recent challenge to the ACA—raised in Texas v. California—is whether neutralizing the individual mandate under Section § 5000A(c) of the GOP’s Tax Cuts and Jobs Act of 2017 (TCJA) undoes the whole statute. This new challenge to the ACA is a sure constitutional loser, no matter what view one takes of the original legislation.
To set the stage for the current dispute, it is necessary to recapitulate the two key constitutional challenges to the ACA in NFIB v. Sebelius. The first was that the ACA exceeded the scope of the Commerce Clause, which gives Congress the power to “regulate commerce among the several states.” The second was that the individual mandate counts as a “tax” that falls within Congress’s power “to lay and collect taxes.”
In the ACA, the individual mandate was artfully disguised as a “shared responsibility payment” whereby young people who failed to enroll were made to pay a levy. As the chief justice noted in his NFIB opinion, the mandate was regarded at the time as an “essential” feature of the ACA structure: the mandate was necessary to keep young adults in the pool, who in turn provided the subsidies needed to keep the rates charged to older Americans affordable. It was presumed at the time that healthy, young adults otherwise would opt out of coverage in droves because their premiums would be far in excess of their collective benefits. The penalty/tax was designed to create a Catch-22, for now in principle young people stood to lose exactly the same amount by opting out of the ACA as by staying in.