In an important opinion this week, the Supreme Court ruled in a 7-2 vote that 18 states and two individuals do not have the legal standing required to bring a suit that aimed to dismantle the Affordable Care Act (ACA), again saving ObamaCare from a potentially fatal blow.
Rather than addressing the most important arguments in the case, the Supreme Court chose to ignore key constitutional issues and focus instead on legal precedence and standing. By doing so, the court failed to protect the constitutional rights of American citizens and left the door open to the possibility of future abuses of power and legal action.
Making matters even worse, the majority opinion’s analysis of whether the case’s plaintiffs have standing is deeply flawed, as Justice Alito noted in his dissent with Justice Gorsuch.
Based on the Supreme Court’s decision, Congress could establish any number of completely unconstitutional laws – for example, bans on all free speech or the free exercise of religion – so long as there are no “traceable” damages tied directly to those overtly unconstitutional mandates.
This is, on its face, a ridiculous position for the Court to take, one that could allow for the creation of some egregious violations of constitutional law in the future.
The plaintiffs in the case challenged the constitutionality of the ACA by raising two important issues.
The first issue the Court was expected to address is whether Congress has the authority to mandate that all Americans buy a qualifying health insurance plan in the wake of Republicans’ 2017 tax reform law, which reduced the ObamaCare “tax” imposed for not being enrolled in a health insurance plan to $0.
The second challenge the plaintiffs asked the Court to address is whether the whole ObamaCare law should be struck down if the individual mandate is determined to be unconstitutional.
The roots of the recent legal dispute can be traced back to a famous (or infamous) opinion authored by Chief Justice John Roberts in 2012, when the Supreme Court ruled in a 5-4 decision that the ObamaCare individual mandate is constitutional. However, contrary to the arguments made at the time by the Obama administration and the Court’s more liberal justices, Roberts’s opinion determined that the ObamaCare requirement to purchase health insurance or face a penalty was legal only because the penalty imposed was effectively a tax. Because Congress’s taxing powers are well-established, Roberts reasoned, federal lawmakers could impose the penalty on those grounds.
But no one at the time, save Roberts and a minority of legal scholars, considered the ObamaCare fine a tax. And for the next five years, scholars, politicians and pundits from across the political spectrum issued numerous scathing criticisms of the opinion.
Then, at the end of 2017, something remarkable occurred: Congress reduced the individual mandate penalty to $0 as part of the Tax Cuts and Jobs Act, effectively making Roberts’s “tax” argument irrelevant.
In February 2018, 20 Republican-led states sued the federal government, arguing that without the ObamaCare tax in place, the individual mandate is no longer constitutional. But they didn’t stop there. The states also argued that based on Supreme Court precedence, the entire ACA law should be struck down too.
Regardless of whether you support ObamaCare, the arguments made by the Republican plaintiffs were important and worthy of consideration. Without a tax, the individual mandate was no longer legally valid, according to the reasoning used by the Supreme Court itself in Roberts’s 2012 decision.
Further, the Court’s two-part test for determining whether striking down one or more provisions in a law ought to render the remainder of the law unconstitutional – a legal concept called “severability” – clearly established a precedent that applied to ObamaCare in the wake of the 2017 tax law.
For decades, the Supreme Court has determined that even if a law can operate exactly as Congress designed it to absent a provision struck down by a court – in this case, the individual mandate – the remainder of the law must also be struck down if it is determined that Congress would not have passed the law in the first place without that provision in place.
The reason for this rule is simple: Courts are not supposed to create new laws. And removing provisions from a law that would never have passed without those provisions would amount to rewriting legislation.
In many cases, it is very difficult to determine what Congress would have done had it known a particular part of a law were not permitted to be included in a proposed bill. But ObamaCare is not one of those instances.
Congress made it clear when writing the ACA that the mandate is “essential” to the operation of the entire law, as Justices Scalia, Kennedy, Thomas and Alito noted in their opinion dissenting to the 2012 Roberts decision.
“The Act calls the Individual Mandate ‘an essential part’ of federal regulation of health insurance and warns that ‘the absence of the requirement would undercut Federal regulation of the health insurance market,’” wrote the justices, who went on to explain why most of the ObamaCare law ought to be struck down, in addition to the individual mandate.
But in the Supreme Court’s ruling on Thursday, it refused to address any of these arguments, even briefly. Instead, the majority argued that the plaintiffs couldn’t bring the suit in the first place, because they had not shown they had suffered damages because of the individual mandate, and thus didn’t have proper standing.
Although it’s a fact that that the individual mandate no longer imposes any direct penalties on Americans who refuse to comply, if it’s true that the individual mandate is unconstitutional and that its illegality should lead to the remainder of the law being struck down (the argument made by 18 states, representing tens of millions of Americans) then it’s obvious that every state in this country, as well as tens of millions of citizens, are suffering from illegal taxes, mandates, regulations and unnecessary costs.
In other words, the ACA, by design, imposes illegal damages if it is true that the law is unconstitutional. That ought to be enough to establish legal standing and require the court to consider the merits of the most important parts of the case — an argument Justice Alito echoes in his dissenting opinion.
By refusing to consider the states’ challenge to ObamaCare, the Supreme Court has allowed an overtly unconstitutional provision to remain in place, and it has set a precedent that could make it incredibly difficult to challenge other unconstitutional laws in the future.
Once again, America’s highest court has failed to protect the rights of the American people.
Justin Haskins (Jhaskins@heartland.org) is the editorial director of The Heartland Institute and the director of Heartland’s Stopping Socialism Project.