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February 27, 2018

Is ObamaCare on Its Last Legal Leg?

A new lawsuit highlights tax reform in an attempt to derail the health care law in its entirety.

When the Supreme Court upheld ObamaCare by a 5-4 vote, Chief Justice John Roberts inexplicably preserved it. In his warped determination, “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” (Keep in mind, Barack Obama argued just the opposite — that it wasn’t a tax.)

ObamaCare has withstood a healthy dose of lawsuits and severe backlash, but this was by far the most despicable, extreme and surprising vindication afforded by the judicial branch. Justice Roberts professes supposedly conservative bona fides, but his arguing in the law’s favor by invoking the federal government’s tax authority — rewriting the law in order to save it — was about as absurd as it gets. But this week there was an interesting twist: Could Roberts’ legal rendering ultimately result in ObamaCare’s demise?

Congressional Republicans nullified the health insurance mandate late last year courtesy of the Tax Cuts and Jobs Act, which a new lawsuit is hinging upon in hopes of finally derailing ObamaCare in its entirety. According to Reuters, “A coalition of 20 U.S. states sued the federal government on Monday over Obamacare, claiming the law was no longer constitutional after the repeal last year of its requirement that people have health insurance or pay a fine.”

Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel are taking the lead on this case. Paxton points out, “The U.S. Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional. With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of ObamaCare, once and for all.”

This is an intriguing argument. As Reuters explains, “The individual mandate in Obamacare was meant to ensure a viable health insurance market by forcing younger and healthier Americans to buy coverage.” In other words, the very structure of the health care law is contingent on the mandate, which is why Obama pushed so vigorously for it. But since Congress has since repealed the mandate, Justice Roberts’ contention that ObamaCare “may reasonably be characterized as a tax” is no longer applicable. Which prompts the question: Under what authority is ObamaCare still “constitutional”?

Unfortunately, our elected branches’ perpetual failings and the proliferation of judicial activism means the states’ new lawsuit against ObamaCare isn’t a slam dunk. However, if Rule of Law finally prevails — and if by some chance ObamaCare returns to the Supreme Court and Justice Roberts is forced to reconcile his previous vote — this would be the ultimate poetic justice. And tax reform will be praised more than it already is.

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