Posted on 05/21/2018 5:56:24 AM PDT by Kaslin
After more than eight years of promising to end Obamacare, Republicans in Congress—despite having control of both the House and Senate—have failed to stop this disastrous health care law. But thanks to an important provision Republicans included in the Tax Cuts and Jobs Act when they passed the law in December 2017, the Trump administration may soon have an opportunity to end Obamacare without Congress, which might force Republican congressmen to finally get their act together and pass health care legislation that would empower states and local governments and free health care markets from costly federal government mandates.
As I have previously noted in several articles on the subject, including in a May 14 article for Townhall, a very strong argument can be made that Obamacare will soon no longer be constitutional. The short explanation is that in the 2012 decision upholding the legality of the Obamacare individual mandate, Chief Justice John Roberts cast the tie-breaking vote in favor of the Affordable Care Act’s individual mandate on the basis that the penalty imposed for not having “qualifying” health insurance is not a fine, penalty, or fee, but rather a tax. Since Congress has the power to tax, Roberts reasoned, it has the power to impose the individual mandate.
When Congress and the Trump administration passed their tax reform legislation in December, they lowered the Obamacare penalty to $0 (effective January 1, 2019), eliminating any possibility of the fine being considered a “tax.” They did not, however, eliminate the mandate to purchase health insurance (because they couldn’t under the congressional rules used to pass the tax reform law). Without the so-called “tax” tied to the mandate, the foundation of Roberts’ argument will completely disappear when the penalty is removed.
This argument, which was also made recently in a lawsuit filed in federal court by 20 states and several other plaintiffs, creates the opportunity for the Trump administration to end Obamacare without Congress having to pass a law. But how?
In other articles, I noted the Trump administration would need to officially declare that the law will no longer be constitutional when the tax is eliminated in January 2019, but as I’ve been instructed recently by former Virginia Attorney General Ken Cuccinelli, that’s only partially correct. In addition to declaring that the Trump administration will not recognize the constitutionality of the law, it would need to settle the lawsuit with those plaintiffs alleging the individual mandate is no longer constitutional. By settling the lawsuit and effectively acknowledging the plaintiffs’ argument is correct, Obamacare could be dismantled without Congress’s approval. With a settlement, it would be legally difficult, if not impossible, for Obamacare to be eliminated because the Trump administration has a duty to enforce existing federal law.
Some of you might be wondering why the entire Obamacare law might be tossed out if only the individual mandate is determined to be unconstitutional. The answer is that in previous Supreme Court cases, the Court has determined that when a particularly important provision of a law is deemed unconstitutional, the entire law should be struck down. The primary reason for this is that the Court’s job is not to create or alter legislation; that power, at the federal level, belongs to Congress alone.
Former Justice Antonin Scalia explained in the dissent he authored in the 2012 case that there is a two-part guide for determining whether one or more provisions ruled to be unconstitutional ought to compel the Supreme Court to strike down an entire law. As Scalia noted in the second part of the guide, the one most relevant for the current situation, “even if the remaining provisions can operate as Congress designed them to operate, the Court must determine if Congress would have enacted them standing alone and without the unconstitutional portion. If Congress would not, those provisions, too, must be invalidated.”
It’s extremely unlikely Congress would have passed Obamacare in 2010 had the individual mandate been removed from the law, because, as Congress noted in the ACA itself, the individual mandate is an “essential” part of the Obamacare scheme and “the absence of the requirement would undercut Federal regulation of the health insurance market.”
Obamacare is not constitutional, and the Trump administration has the power to end Obamacare on its own. For the sake of the country’s failing health insurance market, let’s hope it acts by settling the lawsuit challenging Obamacare and declaring the law to be what it always was: an illegal act by the federal government to force people to buy a product millions of families can’t even afford to use.
Bump for later. This article addresses a lot of the misconceptions about the Supreme Court decision on ObamaCare. The decision wasn’t nearly as egregious as it is often made out to be by conservatives — mainly because it actually only dealt with a small part of ObamaCare.
Three more weeks and we’re supposed to see the administration’s replacement for Obamacare.
"Without a settlement, it would be legally difficult, if not impossible, for Obamacare to be eliminated because the Trump administration has a duty to enforce existing federal law."
??
“How Trump Can Dismantle Obamacare Without Congress”....
What he really needs to do is clean out the IRS, FBI, CIA and the numerous bastions where numerous swamp dwellers still hide. He should also clean out some of his own bad choices (Sessions for example) who still reside in his administration. It would be a “start”.
An obviously self-contradictory statement. Of course it is a penalty, otherwise the tax would have been imposed from the outset instead of upon revelation that an individual had not purchased qualifying health care coverage. Roberts was completely in the wrong on this issue. Any Justice that ruled that the Federal Government can force a citizen to purchase something should be removed from the bench.
I noticed that, too. I believe you are correct.
Yes. I read it over and over trying to get it make sense. The author needs to make a correction.
‘Roberts was completely in the wrong on this issue.’
And he knows he was wrong:
“the Court’s job is not to create or alter legislation; that power, at the federal level, belongs to Congress alone.”
Roberts handed them a gift he had no Constitutional right to give.
Indeed he did. An impeachable offense, if ever there was one.
I agree, I kept rereading that sentence and it never made sense
.…….I think Roberts was to Obama care what Comey was to Hillary’s emails. Meaning, Roberts was and is just as dirty as Comey. We just don’t have the goods on him like we do Comey. His ruling was so bazaar the deep state blackmailed him and got away with it. Brennan had the contacts and power to murder Scalin too. We are just now getting to the tip of the iceberg on what all these rascals have done.
The author would have had a much stronger case if Congress actually eliminated the penalty. They didn't. They just reduced it to $0. This effectively preserves the constitutionality of the individual mandate.
Justice Roberts takes a lot of grief here for his role in the infamous Obamacare Supreme Court decision. There's a common misperception that this decision involved the constitutionality of Obamacare, but it didn't. It only involved the provision of Obamacare (the individual mandate) that was subject to the legal challenge before the court at the time.
As I've said many times since then, there are a lot of other provisions of Obamacare that are much more vulnerable to legal challenges. You're seeing a number of Federal court cases challenging them. Interestingly, the lawsuit cited in this article involving the 20 states is likely to be a complete waste of time. If the individual mandate of Obamacare was constitutional when the penalty ("tax") was several hundred dollars, then surely it is constitutional when the penalty is $0.
Instead of wasting their time with this silly nonsense, these states should go about dealing with the more obvious constitutional flaws with Obamacare. A good example of this would be the various mandates for minimum standards of coverage, the elimination of lifetime caps, the requirement for insurance companies to cover adult children up to the age of 26, etc. These provisions of Obamacare are a blatant violation of the Tenth Amendment, since they impose requirements on a state-regulated insurance industry.
It may be a ridiculous tax, but it's a tax nonetheless.
This is exactly what Roberts meant when he said that it's not the job of the U.S. Supreme Court to fix a stupid law.
The plaintiffs in that case (various states in the U.S.) would have been much better off challenging a completely different provision of ObamaCare: the authority of the Federal government to define "qualifying health care coverage" and to prohibit insurance companies from selling insurance plans that don't meet those standards.
For that matter ... How many states have even come up with strategies to reduce health care costs by developing insurance models that ignore some of these ridiculous provisions of ObamaCare? Idaho has recently announced that it would consider allowing "non-ACA compliant" plans to be sold in that state. What the hell took them so long to do this?
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