Will the Supreme Court take ObamaCare off life-support?
What makes a law a law — the authority of the lawmaker who imposes it, or the exaction of a penalty against people who refuse to comply?
Sounds like a metaphysical question. Down here on Planet Earth, we take as givens that Congress has broad powers to enact laws and that breaking those laws is apt to have serious consequences — administrative actions, civil lawsuits, heavy fines, even criminal prosecution.
When it was enacted in 2010, among the most controversial aspects of ObamaCare (formally known as the Patient Protection and Affordable Care Act, or ACA) was its proponents’ determination to stretch constitutional limits on government power to the breaking point. Thus, the extravagant conceit that the Constitution’s Commerce Clause empowers Congress not merely to regulate interstate commerce but to command citizens to engage in commerce — specifically, to purchase health insurance.
This provision, called the “individual mandate” (or, in the progressive-Democratic authors’ euphemistic framing, the “shared responsibility payment”), requires Americans to purchase coverage, the parameters of which are dictated by federal bureaucrats, or pay a penalty. When fully implemented in 2016, this assessment amounted to the greater of $695 or 2.5 percent of household income.
The ACA was promptly challenged as an unconstitutional overreach. In the Supreme Court’s landmark 2012 decision, National Federation of Independent Business v. Sebelius (“NFIB”), Chief Justice John Roberts played Solomon. He sided with four more conservative justices (the late Antonin Scalia, Clarence Thomas, Samuel Alito and the maverick Anthony Kennedy) in reasoning that the mandate was unconstitutional as a regulation of commerce. Yet, siding with the court’s then-four-justice liberal bloc (Stephen Breyer, Sonia Sotomayor, Elena Kagan, the late Ruth Bader Ginsburg), he nevertheless upheld it, reimagining it as a tax.
This was a dubious construction. It is true that the court’s interpretive canons call for saving congressional laws from constitutional infirmity when possible. A plausible reading under which a challenged statute would be valid should be indulged, even if it is not the most natural reading of the text.
To be kind, though, Roberts’ reading verged on the implausible. For one thing, Congress had not written the mandate in the manner of a tax law, and for good reason: In the intense debate over the law, Democrats struggled to rebut GOP assertions that ObamaCare would lead to massive tax increases. Consequently, they stridently maintained that the mandate — the ACA core — was not a tax. To take a famous example, recall that President Obama rebuked a rare instance of legacy-media insolence when ABC’s George Stephanopoulos insisted that the mandate was a tax.
Only when they got to court and realized the ACA could be invalidated did Obama officials reverse course, placing their chips on Congress’s taxing power. This strategic flip-flop could not, however, change the written law and the well-documented history of its enactment: Progressives had hubristically proclaimed that Big Government must be empowered to force citizens to act in what it deemed to be their interests and the collective community’s interests.
Flash forward to 2017. With Republicans controlling the White House and Congress, the GOP had two relevant objectives: Repeal ObamaCare and cut taxes.
The former was beyond the realm of political possibility. Over time, as its architects had predicted, ObamaCare had gained support by strangling alternative health insurance options, even though the individual mandate remained unpopular. Republicans lacked the consensus to enact a viable, market-based alternative and feared the perception that they opposed such popular ACA provisions as coverage for preexisting conditions and for “children” up to age 26. Despite trying several times to repeal the ACA, they left it in place.
Yet, the push to cut taxes dovetailed nicely with public disapproval of the mandate. Not wanting to give President Trump a political win, Democrats would not agree to repeal the mandate. But they did agree to reduce the mandate “tax” to zero — i.e., there is no assessment against those who refuse to comply.
But if a tax raises no revenue, is it still a tax? And if the mandate is not a tax, how can the ACA be constitutional? After all, but for Chief Justice Roberts’ forgiving construction of it as a tax, the Supreme Court would have invalidated it.
“Wait a second,” you’re thinking. “What difference does it make now whether the mandate is a constitutional tax or an unconstitutional Commerce Clause-based penalty? It’s been zeroed out. No matter what you call it, it’s nothing.”
It’s not nothing: It is still on the books. The federal government still presumes to command that you buy insurance. But now, if you don’t, there’s no financial consequence.
Which brings us back to where we started: Is a law still a law if there is no enforcement mechanism? Do we accord a statutory command legitimacy because it is enacted as law by Congress, or because we know we will be punished if we don’t comply?
The question is not just one for philosophers. It has concrete legal consequences. Hence, California v. Texas.
Texas and its fellow red states never liked ObamaCare, believing it should have been killed in the cradle when Chief Justice Roberts rescued it. They point out that, when the ACA was enacted, Congress said it was ObamaCare’s ne plus ultra — the ultimate. It was essential if new insurance exchanges were to survive under such strictures as “guaranteed issue” and “community rating,” which prevent insurers from reducing or denying coverage options. (Funny, that: Turns out insurance is only a viable financial proposition if it is actually insurance — i.e., voluntary protection against risk, rather than mandatory coverage without risk.)
This has jurisprudential consequences: If Congress says a provision is essential to the operation of a statutory scheme, then a court may not “sever” the provision from the rest of the statute. Or, as Texas contends, if the mandate is constitutionally invalid, then the whole ACA must fall with it.
California and its blue-state alliance counter that this cannot be right. Regardless of what the ACA says, Congress did not repeal the entire statute in 2017 when it zeroed out the mandate. And regardless of what Congress may have believed when the ACA was enacted in 2010, the exchanges are still up and running a decade later, even though the purportedly essential mandate “tax” hasn’t been collected for three years. Under its “severability” doctrine, the Supreme Court presumes that Congress does not want all of a voluminous statute erased just because a single part is invalid. And here, we don’t have to speculate about legislative intent: Congress left the rest of ObamaCare intact when it zeroed out the penalty.
Nice try, says Texas. The doctrinal presumption in favor of severing an invalid provision and letting the rest of a statutory scheme survive only applies if Congress has been silent on the matter. Here, Congress was clear that the mandate was essential to the ACA. Courts have to go with what Congress says — with the text, not with what judges believe they can infer about congressional intent. The red states maintain (with considerable force) that Congress framed the mandate as inseverable. If the mandate is unconstitutional, the rest of the house of cards must fall, too.
Though severability is a knotty question, there appear to be at least five solid votes on the court for maintaining ObamaCare: the three remaining liberals; Justice Brett Kavanaugh, author of a recent opinion reaffirming the court’s presumption against inseverability; and Chief Justice Roberts, who during Tuesday’s arguments, tartly observed that, though anti-ObamaCare lawmakers may have hoped the court would do what they failed to do and topple all of ObamaCare, “that’s not our job” — nicely summing up his approach for eight years running.
The court may never get to the severability question. That depends on where the justices come out on the preliminary issue of standing to sue. Again, we’re back to metaphysics: If Congress orders you to do something it has no authority to order, but doesn’t exact a penalty for noncompliance, are you harmed? Without concrete damages, there is no right to sue. The Supreme Court has no general supervisory authority over Congress; it only gets to rule on the constitutionality of a statute if people suffer real, particularized harm, giving rise to legal claims for redress.
As Justice Breyer observed Tuesday, federal law is strewn with “precatory” exhortations — buy war bonds, or it’s “Beautiful Cities Day” so clean up your yard. No one takes them very seriously. We’re not penalized for ignoring them, even though Congress is doing the exhorting.
Ah, but the ACA mandate is different. It is not just a rah-rah provision. It is a real command of law. Congress may someday raise the “tax” above zero again. Even if it doesn’t, the mandate is a directive, not a suggestion: If you don’t comply, you’re an outlaw. Good citizens are obliged to be law-abiding, even if a law may be illegitimate. If that’s not standing to challenge a law’s illegitimacy, what is?
The point of our Constitution is to safeguard us from government overreach, to maximize liberty while maintaining order. The Constitution is supposed to protect us by limiting Congress’s power to tell us what to do. If Congress transgresses that limit, it is the Supreme Court’s duty to annul that transgression. The mandate may be severable — but it is patently unconstitutional, and the justices should say so.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.