Is Obamacare now unconstitutional? Twenty states are now arguing that Chief Justice John Roberts’s opinion in National Federation of Independent Business v Sebelius leads to just that conclusion. Brad Schimel and Ken Paxton, attorneys general of Wisconsin and Texas, respectively, explain:
Back in 2012, the Supreme Court narrowly upheld the constitutionality of Obamacare in a 5-4 decision. Although the five justices in the majority searched the entire Constitution, the deciding vote—Chief Justice John Roberts—found only one basis for Congress’ authority to enact the individual mandate: the power to levy taxes.
In his opinion, Roberts said that while Obamacare’s mandate is best read as an unconstitutional requirement on Americans—which Congress has no authority to enact—its constitutionality could be salvaged as a “tax” because the mandate’s associated tax penalties raise “at least some revenue.” Roberts cited this raising of “some revenue” as being “the essential feature of any tax.”
Last year, Congress repealed the individual mandate tax penalty, leaving only the unconstitutional mandate. This change rendered the individual mandate unconstitutional under Roberts’ reasoning. After all, the mandate no longer raises “some revenue.”
And without the mandate, the rest of the law falls.
President Barack Obama and the leaders of Congress made it very clear at the time that the individual mandate is the core of Obamacare. Without it, Obamacare cannot function as Congress and the Obama administration intended.
The Obama administration even told the Supreme Court that key parts of Obamacare would be invalid without the mandate. In other words, you cannot constitutionally separate the mandate from Obamacare’s structure. If the individual mandate is now unconstitutional, the entire law must be struck down.
Texas and Wisconsin, joined by 20 states, filed a lawsuit in federal court earlier this month asking the federal courts to obey what the Supreme Court has already recognized and hold all of Obamacare unconstitutional.
[Brad Schimel and Ken Paxton, “Without the Individual Mandate’s Tax, Obamacare Should Fall Apart in Court,” The Daily Signal, March 15]
Congress, of course, could have repealed the whole thing last year. By repealing only the mandate tax, it chose to put the theory that Obamacare cannot work without an enforceable individual mandate to the test.
