Below is my column in USA Today on the recent decision effectively striking down the Affordable Care Act. While Judge O’Connor technically ruled only on the individual mandate, he found that the unconstitutional provision could not be severed from the rest of the Act. Nevertheless, he will have to address the remaining issue and the question of the injunctive relief. There is a good chance that the severability ruling will be reversed but that could still leave the ruling on the individual mandate.
Here is the column:
When federal Judge Reed O’Connor effectively struck down the Affordable Care Act on Friday, there was a chorus of shock and dismay across the country from politicians and pundits alike. However, the decision is in many ways a bill come due for a number of key players in the ACA’s history. Not the least of them is Chief Justice John Roberts. Roberts saved the ACA in 2012 by defining a key provision as a tax. That tax is now gone and, with it, Roberts’ very narrow rationale for preserving the original health care scheme.
The seeds for this decision were planted long before the challenge was filed by Texas and 19 other states. From the outset, the constitutionality of the ACA was questioned by some of us due to the inclusion of the “individual mandate” which required all Americans to purchase health insurance. That provision immediately raised objections under federalism principles. Congress was penalizing individuals and states for the failure to buy a product and then regulating that failure under the claim of Interstate Commerce.
A majority of justices viewed that scheme as a violation of states rights. However, the Obama administration and the Democrats argued that the individual mandate was the thumping heart of the ACA and it could not live without it. This argument was repeated before the Supreme Court, which voted 5-4 to preserve the individual mandate as both constitutional and essential to the ACA.
The individual mandate, and the ACA as a whole, were only saved by Roberts effectively switching sides mid-opinion. After agreeing with the majority on violation of federalism guarantees, Roberts declared the individual mandate was still constitutional as an exercise of Congress’ taxing authority. The reason is that the penalty could be viewed as a type of tax.
Roberts’ tax rationale came as a surprise to many of us, since none of the original parties were arguing that the mandate was a tax. Indeed, one of the drafters, Jonathan Gruber, a Massachusetts Institute of Technology economist, admitted later that “this bill was written in a tortured way to make sure CBO did not score the mandate as taxes.” Roberts’ rationale would prove too clever by half when the penalty was eliminated in 2017 in a tax cut bill.
That left the mandate not only without a penalty but without a constitutional rationale. O’Connor not only struck down the mandate but, without the mandate, he struck down the entire ACA. He found that the mandate was “nonseverable” from the law — again using the prior statements of the drafters and the Supreme Court (both in majority and dissenting opinions).
For critics, another bait-and-switch
The law remains in effect for now and O’Connor’s ruling on the non-severability of the remaining provision of the ACA could well be reversed on appeal. There is a strong judicial policy against striking down the entirety of a law. However, O’Connor’s striking down of the individual mandate could prove more difficult to reverse because his strongest support is found in the ACA’s strongest supporters.
For supporters, the future of the ACA will depend on convincing a court to ignore its past. Specifically, they will have to show that the years of arguing that ACA cannot function without the individual mandate are now mere hyperbole or irrelevant.
For critics, the latest arguments are just another ACA bait-and-switch. First there was Obama’s promise that everyone would be allowed to keep their current doctors. Then there was assurance that costs would fall and that this would not be a tax. Then, after passage, Gruber said that (in direct contradiction of arguments before the court) there was a knowing effort to punish states which did not yield to the ACA and that they passed the ACA only by engineering a “lack of transparency” on the details and relying on “the stupidity of the American voter.”
Gruber is now back assuring those same American voters that the individual mandate really is not that important after all. In an interview on CNN, Gruber insisted “Well look, I think when the law passed we all thought the mandate was a very important part of the law. We have now basically been proven that it’s important but not as important as we thought.” The question is whether John Roberts will show the same flexibility.
Obamacare will survive, but in what form?
Roberts was excoriated for his decision at the time and will now face calls for him to be faithful to his own analysis. He saved the ACA by saying that the mandate was essential to the survival of the ACA but that the penalty was the key to the constitutionality as a tax measure. Now there is no penalty and no tax. As O’Connor suggested, this is a game of Jenga and Roberts already said that this is one stick that cannot be removed.
There is no immediate risk to health insurance. This challenge will work its way to the Fifth Circuit on appeal and there is no injunction against the continued use of the ACA. The question, however, should not be whether the ACA will survive but in what form. Congress in 2017 canceled the penalty, which made the individual mandate purely aspirational. That may produce a steady drop in the most critical group to the viability of the Act: young healthy people. Without them, the law may prove difficult to sustain economically or politically.
What is clear is that, without the penalty, the individual mandate would be difficult to sustain under the original Roberts’ rationale. Even if some of the ACA can be maintained on appeal, it is not clear how much will remain if Roberts himself has to pull that last Jenga stick.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors. He was lead counsel representing the House in its successful challenge to the funding of Obamacare by executive order. Follow him on Twitter: @JonathanTurley