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Untangling the Obamacare Challenge
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.”
President Trump takes all the latitude given his predecessors, by Congress and the Supreme Court, and uses it to fulfill his campaign promises. This week, a minor beer distributorship heiress used the name of the man she married, and then funded in national politics, to make her endorsement of Joe Biden seem significant. It was fitting that she and the national media thought they would help Biden or hurt Trump’s reelection by invoking the name of a Republican, whose last public act was to publicly, proudly break his and his party’s promises to repeal Obamacare. President Trump struck back against the failure of both major parties’ politicians to fulfill promises about healthcare access and affordability. He has just published a very lengthy executive order on the subject that catalogs the failures of the past and points in a new direction. You should at least skim it before the first debate on September 29.
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