The Affordable Care Act, a.k.a. Obamacare, has produced a buffet of judicial controversies about how to construe the Constitution and statutes. On Tuesday, the ACA, the great white whale pursued by Republican harpooners, will be in the court eight years after its near-death experience there. The 10-year-old law will again be the subject of oral arguments concerning the original mandate that individuals purchase health insurance or pay a penalty (the ACA’s euphemism: “shared responsibility payment”).
In 2012, the court ruled 5 to 4 against a challenge to the ACA’s constitutionality. Critics pummeled the ACA with stalks of broccoli, arguing that Congress’s enumerated power to “regulate” interstate commerce does not extend to requiring individuals to engage in a particular commerce. If it did, Congress could, under the pretense of regulating commerce, and as a public health measure, require people to eat broccoli. The federal government would effectively have a general police power, and an already much-attenuated doctrine — that Congress has only constitutionally enumerated powers — would vanish, and with it the possibility of constitutionally limited government.
The court correctly accepted the broccoli cohort’s argument, but Chief Justice John G. Roberts Jr., arguing that the court should “construe a statute to save it, if fairly possible,” asserted something that Congress had not asserted: He said the penalty for not buying health insurance was an exercise not of Congress’s enumerated power to regulate commerce but of the enumerated power to tax. The penalty, Roberts said, had several aspects of a valid tax, the most important being “the essential feature of any tax: It produces at least some revenue for the government.”
But in 2017, a Republican-controlled Congress used its tax-reform legislation to make the mandate’s penalty — the “tax” rate — zero. Republicans thought the ACA would then still require people to buy insurance (even if ignoring the requirement had no consequence), which the court in 2012 said it has no power to do.
If the court does not say, as it might, that the plaintiffs (primarily, more-or-less red states) have no standing to sue — the harms they say they have suffered seem nugatory — it will consider two other questions. Did Congress, by removing the tax penalty, render the mandate unconstitutional? And does the entire ACA — including protection of persons with preexisting conditions — fall if the mandate does?
A lower court answered both questions “yes.” The Supreme Court probably will answer both “no.” Although the penalty attached to the mandate is zero, Congress can at any time increase the tax rate, so the mandate is not a nullity. And remember: The court said in 2012 that if a law can be construed in a way that saves it, it should be. So, even if the court were to say the mandate no longer is a tax and, hence, is unconstitutional, the court is apt to say this empty requirement-without-penalty can be severed from the rest of the law, which shall live.
The court has held that an entire law is invalidated only if a provision that is declared unconstitutional renders the rest of the law “incapable of functioning independently.” Since the mandate was rendered toothless in 2017, the rate of health coverage has not varied significantly. And, as Tennessee Sen. Lamar Alexander, a senior Republican, has said: “I am not aware of a single senator who said they were voting to repeal Obamacare when they voted to eliminate the individual mandate penalty.”
The ACA was unpopular when it passed, partly because a large majority of Americans had health insurance, and a large majority of that large majority liked what they had. During the subsequent decade of repeated Republican efforts to “repeal and replace” it, the act has become more popular, largely because of its provisions pertaining to preexisting health conditions. Because few members of Congress would dare to oppose such provisions, were the court to invalidate the entire ACA, the principle probably would be restored legislatively.
When the court issues its opinion next year, few will remember the 2020 campaign-season commotion about 100 million Americans supposedly losing health insurance because of the court and its newest member. Manufacturers of synthetic hysteria will have to find new markets for their product, and they will.