On Monday the Justice Department informed a federal appeals court that it approved of an appeals court decision that stated the entire Obamacare statute is unconstitutional.
In December, U.S. District Court Judge Reed O’Connor had ruled that Obamacare’s individual mandate was unconstitutional and thus the entire Obamacare structure was invalid. Writing to Lyle W. Cayce, Clerk of the Court of the Fifth Circuit Court of Appeals, Joseph H. Hunt, Assistant Attorney General, and Brett A. Shumate, Deputy Assistant Attorney General, wrote, “The Department of Justice has determined that the district court’s judgment should be affirmed. Because the United States is not urging that any portion of the district court’s judgment be reversed, the government intends to file a brief on the appellees’ schedule.”
O’Connor’s decision came in the case Texas v. Azar, in which the constitutionality of the individual mandate was challenged. O’Connor stated that because Congress terminated the fines placed upon people if they did not obey the individual mandate, the reasoning that Justice John Roberts used in supporting Obamacare by calling it a tax was no longer applicable. Thus the invalidity of the individual mandate, which was an essential part of Obamacare, invalidated the entire package.
O’Connor wrote in his decision, “Here, the Plaintiffs allege that, following passage of the Tax Cuts and Jobs Act of 2017 (TCJA), the Individual Mandate in the Patient Protection and Affordable Care Act (ACA) is unconstitutional. They say it is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under the Interstate Commerce Clause. They further urge that, if they are correct, the balance of the ACA is untenable as inseverable from the Invalid Mandate.”
Resolution of these claims rests at the intersection of the ACA, the Supreme Court’s decision in NFIB (National Federation of Independent Business v. Sebelius), and the TCJA (Tax Cuts and Jobs Act of 2017). In NFIB, the Supreme Court held the Individual Mandate was unconstitutional under the Interstate Commerce Clause but could fairly be read as an exercise of Congress’s Tax Power because it triggered a tax. The TCJA eliminated that tax. The Supreme Court’s reasoning in NFIB—buttressed by other binding precedent and plain text—thus compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. nd because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause—as the Supreme Court already held.
O’Connor delineated how the defendants’ position was inconsistent:
At the threshold, the Intervenor Defendants hope to have their cake and eat it too by arguing the Individual Mandate does absolutely nothing but regulates interstate commerce. That is, they first say the Individual Mandate “does not compel anyone to purchase insurance.” Hr’g Tr. at 37:12. Yet they ask the Court to find the provision “regulate[s] Commerce . . . among the several States.” U.S. CONST. art. 1, § 8, cl. 3. The Intervenor Defendants’ theory, then, is that Congress regulates interstate commerce when it regulates nothing at all. But to “regulate” is “to govern or direct according to rule” and to “bring under the control of law or constituted authority.”
O’Connor noted, “The Court today finds the Individual Mandate is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under Congress’s Interstate Commerce Power … All told, Congress stated three separate times that the Individual Mandate is essential to the ACA. That is once, twice, three times and plainly … On the unambiguous enacted text alone, the Court finds the Individual Mandate is inseverable from the Act to which it is essential … The ACA’s text and the Supreme Court’s decisions in NFIB and King thus make clear the Individual Mandate is inseverable from the ACA.”
He concluded, “For the reasons stated above, the Court grants Plaintiffs partial summary judgment and declares the Individual Mandate, 26 U.S.C. § 5000A(a), UNCONSTITUTIONAL. Further, the Court declares the remaining provisions of the ACA, Pub. L. 111-148, are INSEVERABLE and therefore INVALID.”
On Monday night, reacting to the news from Trump’s DOJ, House Speaker Nancy Pelosi huffed, “Tonight in federal court, the Trump administration decided not only to try to destroy protections for Americans living with pre-existing conditions but to declare all-out war on the health care of the American people.”