The Supreme Court announced Monday that it will take up a legal challenge to Obamacare, with oral arguments likely to begin in October. The last time the high court heard a case on the health regulations law was back in 2012, when it ruled in a 5-4 decision that the individual mandate, which forced Americans to purchase health insurance or face a penalty, was constitutional under the commerce clause.
Back in 2017, however, the Republican-led Congress set the tax penalty for noncompliance at zero, effectively eliminating the mandate. This move prompted Texas, along with a group of other states, to bring a lawsuit, arguing the revised law is unconstitutional.
A federal district court judge from Texas agreed, ruling in December 2018 that the law had no legal footing since the removal of the mandate. The Fifth Circuit Court of Appeals later upheld this decision 2-1. But the appeals court also charged the trial judge with “reassessing how much of the sprawling legislation may stand without the individual mandate provision.” Now that the Supreme Court has decided to take up the case, it will not go back to the lower court for such analysis.
The Supreme Court now has a historic opportunity to right its previous wrong and strike down Obamacare once and for all. The argument that Obamacare is constitutional is blatantly absurd. In Article I, Section 8, the Constitution’s commerce clause states Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Obamacare proponents argue that economic activity is not required before Congress can exercise its commerce clause powers. They even go so far as to say that even if such activity is required, not having insurance constitutes economic activity.
This argument is illogical, as it would mean Congress has the power to regulate economic “inactivity,” which is the exact opposite of its enumerated powers in the Constitution. When the then-Democrat-controlled Congress passed the law, not only did it mandate that Americans purchase certain services they may or may not have wanted to buy, but it tried to create commerce. While Congress certainly possesses the power to “regulate” commerce, it most definitely cannot mandate nor create it.
With the elimination of the mandate, conservatives may hope the high court will finally toss the unconstitutional law onto the trash heap of history. While the Supreme Court currently holds a conservative majority, two key justices will ultimately have the final say on whether Obamacare stays or goes: John Roberts and Brett Kavanaugh.
In the 2012 NFIB v. Sebelius decision on Obamacare, Chief Justice Roberts broke with his conservative colleagues and joined with the liberals on the court to uphold Obamacare, ruling that the government could mandate the purchase of health insurance under its power to tax. Roberts wrote, “The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause.”
But he also stated, “In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”
Roberts’ argument essentially provides Congress newly unlimited taxation power, which is directly opposite the federal government’s supposed role of being a limited body. Additionally, nowhere in the Constitution’s enumerated powers does it give Congress the power to force people to purchase something.
Roberts’ 2012 opinion should raise concern, as CBS News has reported that the chief justice pays close attention to media coverage of the high court. Reportedly, Roberts originally held the position of striking down the Affordable Care Act with his conservative colleagues, but ultimately switched at the last moment. Since the retirement of Justice Anthony Kennedy, Roberts in many ways has become the swing vote of the court, with his positions on high-profile cases up in the air.
Concerning Kavanaugh, many conservatives are troubled by an opinion he wrote on Obamacare during his time on the D.C. Circuit Court of Appeals in 2011. While Kavanaugh dissented from his colleagues, he didn’t go out of his way to declare Obamacare unconstitutional.
According to Fox News, “The allegation from conservative critics is rooted in a 2011 ObamaCare case where Kavanaugh dissented against the ruling but acknowledged that the Affordable Care Act’s ‘individual mandate provision’ could fit ‘comfortably within Congress’ Taxing Clause power.’” Kavanaugh’s questionable stance on Obamacare has caused many conservatives to be concerned with his judicial philosophy and skeptical of how he will handle the subject later this year.
One thing is certain: No matter how the Supreme Court votes on Obamacare, people will be angry. It’s up to the court to stand by the Constitution and our nation’s founding principles, and that means canceling the Affordable Care Act for good.