It happened over the weekend. A federal judge in Texas ruled that Obamacare was unconstitutional. It’s music to conservatives’ ears. It’s something the Right has yearned to hear from the bench since they started this legal and legislative war against President Obama’s chief domestic action item. It’s a shoddy law. It’s not affordable. It’s crushing the middle class with premium shock, but millions are now benefitting from it. And if there is one message that you could offer that guarantee an election defeat, it’s we’re going to take away your stuff. The 2012 election was the last window in which the GOP could repeal the law before there was political blowback and collateral damage.
Still, it was a cornerstone in the conservative movement’s opposition to the Obama presidency. Yet, don’t hang your hat on this recent ruling. It’s going to be appealed. It’s going back to the Supreme Court. The law is still in effect; an injunction was not issued. And it will be used as another opportunity for Democrats to take swipe at the GOP over pre-existing condition—and yes, it could drive some Republicans to panic and join forced with Democrats to save large portions of Obamacare. That’s the trap. Again, Obamacare is terrible. It’s not sustainable. It’s an obvious test run for a total government-run health care program that will destroy the country with its costs—but the fallout from this could have unintended consequences. The Wall Street Journaleditorial board noted these dangers, though they did like how Chief Justice John Roberts own ad hoc legal reasoning to make the ACA constitutional blow up in his face. Roberts said that the individual mandate was a tax, which the Obama administration argued against, therefore a legal provision. The lawsuit filed by Texas Attorney General Ken Paxton, and joined by at least a dozen more state attorneys general, argued that since Republicans repealed the mandate, the law was now illegal. The judge agreed. And alas, here we are:
No one opposes ObamaCare more than we do, and Democrats are now confirming that it was designed as a way-station to government-run health care. But a federal judge’s ruling Friday that the law is unconstitutional is likely to be overturned on appeal and may boomerang politically on Republicans.
We’ll admit to a certain satisfaction in seeing the Chief Justice hoist on his own logic. But his ruling in NFIB v. Sebelius was in 2012 and there is more at issue legally now than the “tax” issue in that opinion. One legal complication is that Congress in 2017 repealed the financial part of the individual mandate, not the structure of the mandate itself. Republicans used budget rules to pass tax reform so they couldn’t repeal the mandate’s express language.
In any case, the Supreme Court’s “severability” doctrine calls for restraint in declaring an entire law illegal merely because one part of it is. Our guess is that even the right-leaning Fifth Circuit Court of Appeals judges will overturn Judge O’Connor on this point.
As for the politics, Democrats claim to be alarmed by the ruling but the truth is they’re elated. They want to use it to further pound Republicans for denying health insurance for pre-existing conditions if the law is overturned. Democrats campaigned across the country against Mr. Paxton’s lawsuit to gain House and Senate seats in November, and they will now press votes in Congress so they can compound the gains in 2020.
President Trump hailed the ruling in a tweet, but he has never understood the Affordable Care Act. His Administration has done good work revising regulations to reduce health-care costs and increase access, but the risk is that the lawsuit will cause Republicans in Congress to panic politically and strike a deal with Democrats that reinforces ObamaCare. This is what happens when conservatives fall into the liberal trap of thinking they can use the courts to achieve policy goals that need to be won in Congress.
It’s a fair point—and one that I agree with; the courts shouldn’t be used to circumvent the legislature or its process when it comes to folks who want to change the law. That’s why abortion remains a contentious issue, as will gay marriage, since the courts detonated an evolving national consensus on both issues. At the same time, we didn’t make up these rules; the Left did.