The Trump administration’s legal arguments are ridiculous.
The Trump administration filed a brief in the Supreme Court late Thursday night claiming that the “entire [Affordable Care Act] must fall” in the middle of a pandemic that has killed over 120,000 people in the United States, and sickened more than 2 million.
If the administration succeeds in its effort to kill Obamacare, approximately 23 million Americans will lose health coverage — and that number is likely to grow as the economic downturn triggered by the coronavirus pandemic pushes more and more Americans out of work.
The plaintiffs in this case include a bloc of red states and two individuals. The United States is actually the defendant in this lawsuit, but the Trump administration refused to defend the Affordable Care Act, and instead cast its lot with the plaintiffs. The Court plans to hear this case in the fall.
This case, which is now known as California v. Texas, involves Congress’s decision to repeal Obamacare’s individual mandate. As originally enacted, the Affordable Care Act requires most Americans to either obtain health insurance or pay higher taxes. The tax law President Trump signed in 2017 reduces the amount of that tax to zero.
Because the Supreme Court upheld the fully functional mandate as a valid exercise of Congress’s power to tax in 2012, the Texas plaintiffs argue that the zeroed-out version of the mandate is unconstitutional — on the theory that something cannot be a valid tax if it raises no money at all. They also claim that the entire Affordable Care Act must fall if the deactivated mandate is unconstitutional.
This claim that Obamacare must be repealed by judicial decree is widely viewed as ridiculous even by conservative legal experts who backed prior efforts to convince the Supreme Court to gut Obamacare.
Jonathan Adler, a leading proponent for an earlier lawsuit seeking to undercut the Affordable Care Act, labeled many of the anti-Obamacare arguments in Texas “implausible,” “hard to justify,” and “surprisingly weak.” Yuval Levin, a prominent conservative policy wonk, wrote in the National Review that the lawsuit “doesn’t even merit being called silly. It’s ridiculous.”
As noted above, the Affordable Care Act originally required most Americans to either carry insurance or pay higher taxes. The Supreme Court famously upheld this provision, known as the “individual mandate,” as a valid exercise of Congress’ power to levy taxes in NFIB v. Sebelius (2012).
Congressional Republicans spent much of 2017 debating various plans to repeal Obamacare, but they ultimately did not have the votes for a broad repeal. They did, however, manage to repeal the individual mandate in the 2017 tax legislation. Though the United States Code still contains Obamacare’s language requiring individuals to pay a tax penalty if they do not have insurance, the amount of that penalty is now zero dollars.
The Texas plaintiffs and the Trump administration claim that this shell of a mandate is unconstitutional. The fully functional mandate was constitutional because it is a tax, but a zero dollar tax is no tax at all.
