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Analysis – Health Care Law Ruled Unconstitutional

Supreme Court

U.S. Supreme Court (A. Kotok)

16 Dec. 2018. From our earliest days at Science & Enterprise, we reported on research and innovations in health care brought on by the Patient Protection and Affordable Care Act of 2010, known more often as the Affordable Care Act or Obamacare, by its detractors. Late Friday, a federal district court judge in Texas ruled the entire Affordable Care Act unconstitutional.

The suit was brought by a group of Republican governors and attorneys-general, and Judge Reed O’Connor of the district court in Fort Worth cited the individual mandate — a provision requiring people to have health insurance — as unsustainable tax law, and thus it violated the U.S. Constitution. The judge also said since the individual mandate was a core feature of the bill and so much of the law depended on it, the entire law was also unconstitutional.

An analysis of the law’s legal and constitutional standing is beyond our capabilities, but a commentary in the New York Times yesterday offers an expert review of the decision. What’s remarkable about this analysis is that the authors — law school professors Jonathan Adler at Case-Western Reserve University and Abbe Gluck of Yale University — were on opposite sides of suits brought against the Affordable Care Act in 2012 and 2015.

Also remarkable is the language in the article, hardly what one would expect from law school faculty. Adler and Gluck call the action, “a shocking legal ruling.” In addition, the authors characterize the decision as, “an exercise of raw judicial power.” A key element of O’Connor’s decision was the close connection of the individual mandate with the rest of the Affordable Care Act. The authors note …

An established legal principle called “severability” is triggered when a court must consider what happens to a statute when one part of it is struck down. The principle presumes that, out of respect for the separation of powers, courts will leave the rest of the statute standing unless Congress makes clear it did not intend for the law to exist without the challenged provision. This is not a liberal principle or a conservative principle. It is an uncontroversial rule that every Supreme Court justice in modern history has applied.

But Adler and Gluck also note that in 2017 Congress made it crystal clear the individual mandate could be severed from the rest of the Affordable Care Act, when it voted to eliminate penalties for not buying insurance. …

But this is an easy case: It was Congress, not a court, that eliminated the mandate penalty and left the rest of the statute in place. How can a court conclude that Congress never intended the rest of the statute to exist without an operational mandate, when it was the 2017 Congress itself that decided it was fine to eliminate the penalty and leave the rest of the law intact?

The authors go on the carve up the law in this manner, almost to the point of ridicule. It’s worth a read.

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