Undone: The New Constitutional Challenge to Obamacare

Abstract

The saga of the Affordable Care Act’s individual mandate can be told in three acts. Act I: Unprecedented. In 2010, a sharply-divided Congress required most Americans to purchase insurance. Two years later, in NFIB v. Sebelius, a sharply-divided Supreme Court found that Congress lacked the power to enact this unprecedented individual mandate pursuant to the Commerce and Necessary and Proper Clauses. However, through a “saving construction,” the individual mandate was upheld as an exercise of Congress’s taxing power. Act 2: Unraveled. Between 2012 and 2016, congressional Republicans attempted, over and over again, to “repeal and replace Obamacare.” So long as President Obama wielded the veto pen, these efforts were doomed to fail. Yet, the attempts to unravel the ACA were not limited to Congress. After the first round of litigation failed, conservative groups brought new legal challenges to block the ACA’s payment of subsidies. If successful, millions of Americans would no longer be penalized for going uninsured. However, the Supreme Court once again turned away that challenge in King v. Burwell. Act 3: Undone. Following the 2016 election, Republicans now controlled the White House, and both Houses of Congress. It soon became apparent that they would be unable to “repeal and replace Obamacare,” as promised. However, through the Tax Cuts and Jobs Act of 2017, the GOP was able to accomplish what NFIB and King did not: eliminate the penalty for going uninsured. Obamacare’s core was undone. Soon enough, Texas and a host of other states brought a new constitutional challenge to the ACA. Now that the individual mandate no longer raised any revenue, they argued, it could no longer be saved as a tax. Therefore, all of Obamacare must be set aside. The Department of Justice agreed in part, and declined to defend the mandate and other portions of the law. New Jersey and a host of other states intervened to defend the ACA in its entirety. And that litigation proceeds apace. We are now in the midst of Act 3. No one knows how it will end. This article will explain how it began.