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

David Catron

gnore 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 auhority 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:Once the heart of the ACA — the individual mandate — is decared unconstitutional, the remainder of the ACA must also fall

… without any accompanying exercise of Congress’s taxing power, which the Supreme Court already held that Congress has no authority to enact. Not only is the individual mandate now unlawful, but this core provision is not severable from the rest of the ACA — as four Justices of the Supreme Court already concluded. In fact, Congress stated in the legislative text that the ACA does not function without the individual mandate.

READ ENTIRE POST