Can ‘Texas v. United States’ Set Us Free From Obamacare?

[Elderberry]

American Spectator by David Catron 3/12/2018

The lawsuit filed by 20 states has far more merit than is generally believed.

Ignore everything you have been told by the “news” media about Texas v. United States, the lawsuit recently filed by 20 states challenging the constitutionality of Obamacare. The Fourth Estate, in its all but official role as the public relations department of the Democratic Party, has generally downplayed the suit as yet another futile attempt by fanatical Republicans bent on destroying former President Obama’s “legacy.” Following their usual playbook for reporting constitutional challenges to the “Affordable Care Act” the media briefly sneered about its merits and then, to paraphrase David Burge, “covered the story with a pillow.”

It is nonetheless an important case and it’s useful to review the basis on which the plaintiffs actually base their case against the mandate: In 2012, a majority of the Supreme Court’s justices — including Chief Justice Roberts — rejected the government’s claim that Congress could impose the individual mandate pursuant to the Commerce Clause of the Constitution. Yet Roberts held that the mandate was still constitutional because its penalty was a tax collected by the IRS to raise revenue. The plaintiffs argue that this “saving construction” evaporated when Congress reduced the penalty to zero last year. Their complaint puts it as follows:

    The Patient Protection and Affordable Care Act… as recently amended, forces an unconstitutional and irrational regime onto the States and their citizens. Because this recent amendment renders legally impossible the Supreme Court’s prior saving construction of the Affordable Care Act’s core provision — the individual mandate — the Court should hold that the ACA is unlawful and enjoin its operation.

In other words, because Congress has no authority to impose the individual mandate pursuant to the Commerce Clause, and it can’t be justified as a revenue-raising device (since enactment of the Tax Cuts and Jobs Act of 2017), the mandate must be struck down. But why should the entire “reform” law also be struck down? Virtually all statutes contain a “severability” clause essentially stating that, if any of its provisions are found to be legally invalid, the remaining provisions stay in force. The “Affordable Care Act” has no severability clause. The plaintiffs therefore argue that, if the mandate is struck down, the rest of law must fall:

More: https://spectator.org/can-texas-v-united-states-set-us-free-from-obamacare/

[Elderberry]

What is this Lawsuit’s Chance of Succeeding?

https://www.zelis.com/resource/texas-v-usa-will-the-latest-attempt-at-aca-repeal-succeed-where-others-failed/

While the likelihood of success in this latest attempt at ACA repeal is hard to predict, the suit has some discernable factors in its favor as well as obstacles.

Unlike recent legislative attempts to repeal ACA supported by the Trump Administration, the lawsuit now puts the Trump Administration in the position of the Defendant and, subsequently, in the position of defending the ACA. As of this writing, the administration has yet to comment on the suit, and it is anyone’s guess what the administration’s approach might be.

Another foreseeable (and likely the largest) obstacle for the case may be the courts’ general reluctance to push back on a law which was passed by Congress and one that Americans have lived under for almost eight years. The bar is set high for the states to prove that the judicial branch should take action to roll back the ACA when the legislative branch has already attempted and failed to do so. In the words of Chief Justice John Roberts in NFIB v. Sebelius, “It is not our job to protect the people from the consequences of their political choices.”

[DB]

I don't believe this genie is ever going back into the bottle. It is now the new normal.