Wednesday’s ruling by the U.S. Court of Appeals for the 5th Circuit invalidating Obamacare’s individual mandate has raised the possibility that the entire bill might be struck down as a result. That’s highly unlikely to happen given legal doctrine and the Supreme Court’s makeup. Opponents should instead think about how to reform health policy rather than hope for a judicial lightning bolt to strike Obamacare down.
The circuit court’s ruling makes sense under constitutional law. Congress can only pass laws pursuant to its constitutionally assigned powers. The mandate was originally upheld by the Supreme Court because the court found that it could be construed as an exercise of the power to tax and spend, an enumerated power in Article I of the Constitution. That was because the mandate wasn’t really a mandate; individuals could refuse to buy health insurance and pay a small tax penalty instead.
This justification went out the window, however, after Congress eliminated the penalty in 2017. The 5th Circuit’s ruling simply recognizes that Congress lacks constitutional authority to require anyone to purchase health insurance. It would have been constitutionally revolutionary for them not to have ruled this way.
This does not, however, mean that any other provision in Obamacare should be struck down as a consequence, as a group of Republican states’ attorneys general is seeking from the court. That decision is handled according to a legal principle called the severability doctrine, which requires a court to decide what Congress would have done had it known the provision was unconstitutional. In some cases, courts will also look at the practicality of the matter to assess whether the remainder of the law can function in the absence of the unconstitutional provision.
It should be clear to all that no other provision of the law should be struck down because of the mandate’s unconstitutionality. Chris Pope, a health-care expert and a senior fellow at the Manhattan Institute, notes that Obamacare covers a host of issues utterly unrelated to the mandate. Title II addresses the Medicaid expansion, for example, while Title III covers changes to Medicare’s payment policies. The mandate at most affects only the insurance regulations and the Obamacare exchange established in Title I. “How can eliminating a $0 mandate,” Pope argues, “pull down the entire law?”
Congress’s intent is clear because of its 2017 decision to eliminate the mandate’s penalty without touching the rest of the act. Practical considerations also show the mandate was not essential to rest of the act: When Congress removed it in 2017, liberals argued millions of people would exit the exchanges without the mandates penalties, thereby dooming Obamacare. Instead, few people have chosen to go without insurance, and premiums on the exchanges — which had risen significantly for every year prior to the mandate’s de facto repeal — have dropped. The exchanges function quite well without an effective mandate.
It will likely take at least a year before this case is settled. The 5th Circuit has remanded the case to the district court to apply the severability doctrine to Obamacare’s hundreds of provisions. It should take the district court a couple of months to take arguments from the parties and finish its review. Its findings can then be appealed to the 5th Circuit, which also must set time for the parties to submit briefs and make oral arguments. Even on the fastest imaginable schedule, the circuit court’s opinion should not be available until the summer of 2020.
That would then bring the matter to the Supreme Court, and it is hard to see how Obamacare opponents will prevail there. Assuming the court’s four liberals are still on the bench, Chief Justice John G. Roberts Jr. would be the deciding vote. Voting to invalidate all or much of Obamacare would require him to effectively renounce his entire line of reasoning in the opinion he wrote in 2012 upholding the mandate. He’s not going to do that.
Indeed, the case might never even get to the Supreme Court. The court only takes jurisdiction over a case if four justices vote to grant an appellant’s petition for certiorari. If the circuit court refuses to hold any provision other than the mandate unconstitutional, there may not be four votes on the Court to “grant cert.”
It’s time for conservatives to stop tilting at windmills and start doing the job the American people want them to do. That means getting involved in the messy business of making health insurance more affordable while enhancing overall patient health. That’s not as sexy as winning a big legal case. But it will insert conservatives into the discussion the voters want them to be involved in: how to get people the health care they need at a price they can afford.