The latest arrivals bring to 20 the number of states challenging the ACA before the U.S. Supreme Court. ACA, also known as Obamacare, survived a significant Supreme Court challenge in 2012 when, in a controversial 5–4 decision, the court upheld the constitutionality of the law by declaring the critical individual mandate provision a tax instead of a penalty.
Individual Mandate Eliminated
In the 2017 Tax Cuts and Jobs Act, Congress and President Donald Trump eliminated the individual mandate penalty, which required all Americans to purchase Obamacare-approved health insurance plans or pay a fine.
Justin Haskins, executive editor of The Heartland Institute, which publishes Health Care News, says the removal of the mandate makes most or all of ACA unconstitutional because the so-called tax was the reason the Supreme Court declared ACA as justified under the Constitution in 2012.
“Now that Congress has effectively eliminated the individual mandate penalty, there is no question that the individual mandate cannot be considered constitutional, even by Roberts’ erroneous logic,” Haskins said. “Without the mandate, courts should strike down, at the very least, significant portions of the Affordable Care Act. Supreme Court precedent is clear on this matter: if a provision of a law is deemed to be unconstitutional and it is determined Congress would not have passed the law without that provision, courts should strike down most or all of the law in question, because courts do not have the constitutional authority to create or modify legislation.”
Haskins says the individual mandate was a keystone provision of Obamacare.
“In this case, the mandate is repeatedly said to be ‘essential’ to Obamacare’s operation, which means it’s highly unlikely the Affordable Care Act would have ever been passed without the mandate,” Haskins said.
‘Pleased’ with Trump Response
Twila Brase, a registered nurse, president and cofounder of the Citizens’ Council for Health Freedom, and policy advisor to The Heartland Institute, says the Trump administration appears willing to reverse significant parts of Obamacare.
“We’re pleased the Trump administration has agreed that the law’s mandate is unconstitutional and refuses to defend it against the states’ lawsuit, as well as calling on the court to end the law’s requirement to force insurers to insure uninsurable preexisting conditions. We also applaud the administration’s discomfort with the law’s requirement to charge younger and healthier people similar rates as those who are older and sicker,” Brase said.
Brase says she believes states have a strong case against the constitutionality of Obamacare now that the individual mandate has been repealed.
“States are wisely remembering their 10th Amendment rights against federal encroachment,” Brase said. “Since Congress zeroed out the Obamacare penalty, the mandate to be insured can no longer be considered constitutional as deemed by Supreme Court Justice John Roberts. It’s no longer under the taxing authority of Congress. Every state should join the lawsuit.”
‘A Ridiculous Interpretation’
Haskins says the Supreme Court’s 2012 ruling was unjustified.
“Chief Justice John Roberts’ decision in 2012 to classify the individual mandate penalty as a tax, and thus as a legitimate constitutional power of Congress, was a ridiculous interpretation of the law,” Haskins said. “Congress at the time, as well as the Obama administration, insisted the penalty was not a tax, and they admitted the primary purpose of the penalty was not to raise revenue but to force people to buy health insurance and punish those who don’t.”
Six years after that Court decision, the pending lawsuit carries even more legal merit, Brase says.
“The lawsuit by the states is a worthy endeavor to do what Congress has refused to do: repeal the law,” Brase said. “It must be done, whether by lawsuit or legislation.”
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Chris Talgo is senior editor at The Heartland Institute and a research fellow for Heartland’s Socialism Research Center.
