But Republicans, despite having chickened out of actually repealing the thing, are not quite ready to admit they’re licked. Republican attorneys general and governors from 20 states are suing (yet again!) to overturn the law. On Friday, a federal judge in Texas obliged them. Reed O’Connor, an appointee of President George W. Bush, ruled that since the 2017 tax law has gutted enforcement of Obamacare’s mandate on citizens to buy insurance, it is no longer constitutional under the taxing power. And since the program’s architects predicated it on the mandate, O’Connor said, the entire law must be struck down.
To be blunt, this isn’t a good ruling. There’s a reasonable legal argument that a “tax” that raises no money isn’t really much of a tax. But neither policy nor legal precedent requires the court to strike down the rest of the law.
While it’s true that Obamacare’s architects thought the mandate essential, nine years in, their faith seems misplaced. The mandate was supposed to force healthy people into the insurance market, preventing prices from spinning out of control. But Obamacare’s mandate enforcement proved too weak to be very effective, which is one reason fewer people than expected are being covered. The people who are buying insurance seem to be motivated by other parts of the law, such as the subsidized tax credits, not by the mandate.
Of course, arguably what matters here are Congress’s intentions, not its ability to see the future. But even by that logic, O’Connor’s ruling is flawed, because it considers only the intent of the Congress that passed the program in 2010; the ruling ignores the intent of the 2017 Congress that repealed the tax penalty and presumably could have repealed the whole law if members wanted to.
Even many of the law’s opponents are dubious about the judge’s reasoning. Jonathan Adler, a Case Western Reserve University law professor who helped craft an earlier lawsuit challenging Obamacare, called the ruling “an exercise of raw judicial power, unmoored from the relevant doctrines” in an op-ed for the New York Times co-written with Abbe R. Gluck. Adler expects it to be overturned by a higher court in fairly short order.
If Adler is right, and I think he is, Republicans are going to have to decide how long they’re willing to fight this rear-guard action. There is clearly no real path to getting rid of the law either legislatively or judicially. At some point, they’re going to have to acknowledge that Obamacare is here to stay, and make peace with it as best they can.
They don’t have to like it. I thought Obamacare was a bad law in 2010, and the intervening years haven’t improved my opinion. It did little to address the biggest problems with the American health-care system, and a great deal to complicate an already disastrously complex and fragile market. I would have been pleased to see it defeated in Congress, or in earlier court battles.
But Obamacare is now part of the system. Markets have been rebuilt around it; voters have gotten used to it; the Supreme Court seems unwilling to strike it down. Republicans’ actions are starting to look less like Horatius at the bridge and more like Don Quixote at the windmills.
Battling windmills isn’t merely pointless but also diverts your attention from things worth doing. Obamacare is still a badly flawed program that needs fixing; the American health-care system remains overpriced, overcomplicated and overregulated.
Republicans could help the country, and themselves, if all the time and thought they pour into lawsuits were devoted to coming up with simpler, more market-friendly alternatives to today’s Rube Goldberg policy contraption. Alternatively, of course, they could keep on doing what they’re doing, ensuring that they waste a full decade on their fruitless quest.