While Congress wastes its time on a pointless and politically motivated presidential impeachment effort, federal court cases are pushing ObamaCare closer than ever to collapse, a scenario that would impact more than half of all Americans. And the worst part is, no one in Congress seems to care.
It’s good to see Congress has its priorities straight, right?
On Wednesday, the Fith Circuit Court of Appeals upheld a lower court’s decision to determine as unconstitutional the Affordable Care Act’s individual mandate. However, the circuit court also sent the case back to the lower court judge — U.S. District Judge Reed O’Connor — for a more complete assessment of the extent to which other provisions of the ACA should also be eliminated.
Previously, O’Connor had ruled that the entirety of the ACA — a spectacularly bad law that has substantially increased health insurance costs for tens of millions of Americans — should be struck down because of the unconstitutionality of the individual mandate, a decision the Fifth Circuit Court didn’t reject but instead asked for the lower court to provide more information.
Seven years ago, the Supreme Court determined — in a totally absurd opinion issued by Chief Justice John Roberts — that the ObamaCare individual mandate penalty imposed on people who choose not to buy “qualifying” health insurance plans is constitutional because the penalty is actually a tax. (A ruling made more ridiculous by the fact the Obama administration itself refused to call the penalty a “tax.”)
However, when Congress passed the Tax Cuts and Jobs Act in 2017, it reduced the tax to zero, rendering the mandate unconstitutional according to O’Connor, the Fifth Circuit Court, the 18 Republican-led states that filed the lawsuit now under consideration, and the Trump administration.
The reasoning presented by opponents of the individual mandate is simple and obviously correct: If the mandate to buy health insurance can only pass constitutional muster as a tax and the “tax” is zero, then the only valid justification for the requirement has been stripped away.
The most important question remaining, however, isn’t about the individual mandate itself. It’s whether courts will allow the remaining parts of the disastrous ACA to stay in place despite the unconstitutionality of the individual mandate. (In legalese, they call this concept “severability.”)
If courts determine that important parts, or potentially all, of the ACA must be eliminated, then the current health insurance system would, virtually overnight, be radically transformed — possibly for the worse.
Courts have developed a two-step process for deciding to what extent a law should remain in place after one or several parts of it have been determined to be illegal. The first is whether the law would be “fully operative.” (In this case, the ACA would remain operative.)
The second is that even if the law were fully operative, courts must ask whether they believe Congress would have passed the law in the first place without the provision the courts have struck down — in this instance, the individual mandate.
Congress — under both Republican and Democratic leadership — has failed to pass legislation fixing this completely dysfunctional system, choosing instead to engage in childish personal attacks and silly investigations based on conspiracy theories, all while promoting utterly stupid, fantasy-land policy proposals like the Green New Deal.
Things get really complicated at this point, but here’s what you need to know:
There are really good reasons to believe courts will determine that Congress would not have passed the ACA without the individual mandate, which means many of the most important parts of ObamaCare could be eliminated over the next couple of years.
For example, the ACA itself says “the absence of the [individual mandate] would undercut Federal regulation of the health insurance market,” and that the provision is necessary to prevent people from waiting until they get sick before buying health insurance. Congress even went so far as to say the mandate is “essential.”
It’s hard to imagine that the same Congress that said the mandate is “essential” would have passed the law without the mandate. It’s also hard to argue legally that the 2017 Congress that reduced the “tax” to zero thought the mandate was meaningless, because it could have removed the mandate entirely if it wanted, but chose instead to leave it in place.
Although the Fifth Circuit sent the case back to Judge O’Connor for a more detailed analysis, we already know he supports striking down the entire law, and the Fifth Circuit Court didn’t say his conclusion was wrong, only that he needed to provide a more detailed analysis.
The writing is clearly on the wall: The Fifth Circuit Court, which is controlled by judges who lean to the right, will eventually strike down important elements of the ACA. And when it does, it will trigger another ObamaCare showdown in the Supreme Court, which is now more conservative than ever thanks to President Trump’s appointments of Brett Kavanaugh and Neil Gorsuch.
We already know conservative Justices Clarence Thomas and Samuel Alito would likely strike down all of the ACA because they agreed with that view in a 2012 dissenting opinion.
ObamaCare has been hurtling toward total collapse for years now, even without the courts getting involved. Premiums have doubled since ObamaCare went into effect, and deductibles have skyrocketed, making health insurance effectively useless for millions of American families. The average deductible for an ObamaCare family “Bronze” plan is now more than $11,000.
Meanwhile, Congress — under both Republican and Democratic leadership — has failed to pass legislation fixing this completely dysfunctional system, choosing instead to engage in childish personal attacks and silly investigations based on conspiracy theories, all while promoting utterly stupid, fantasy-land policy proposals like the Green New Deal.
It’s entirely possible the only way health care reform will actually happen this half-century is if Congress is dragged kicking and screaming to the negotiating table, and a Supreme Court ruling striking down key parts of ObamaCare would likely do just that.
But such a ruling wouldn’t come without some potentially serious problems. Depending on which provisions of the law are kept, the already broken health insurance marketplace could be made even worse. Costs could go up even higher than they already are. In some cases, costs might become so great people will lose access to their health insurance. If that occurs, Americans could die.
Congress shouldn’t wait for the present ObamaCare disaster to become a crisis, but it’s very likely it will do just that. After all, there are far too many witches to hunt to worry about families’ health insurance costs.