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December 17, 2018

A Short-Lived Victory Against ObamaCare?

Texas Judge Reed O’Connor struck down the laughably named “Affordable” Care Act.

ObamaCare is dead. Long live ObamaCare. Texas Judge Reed O'Connor struck down the laughably named “Affordable” Care Act Friday in a ruling cheered by President Donald Trump and many conservatives. But it’s complicated and that celebration is likely premature.

When Republicans passed tax reform, they repealed the tax penalty that enforced ObamaCare’s individual mandate. In doing so, they intentionally recalled Chief Justice John Roberts’s tortured logic and despotic legal rewrite in saving ObamaCare in 2012. He declared the mandate to be illegal under the Commerce Clause — “The Framers gave Congress the power to regulate commerce, not to compel it” — but then he rewrote the law to declare the penalty a tax so as to justify it under Congress’s tax authority. Never mind that Democrats spent four years declaring it wasn’t a tax, or that they had drafted the law to specifically avoid that language. Republicans set the tax at $0.

Thus, 20 suing states argued and O'Connor agreed that the law is undermined and unconstitutional since the tax no longer exists and the entire law depends on the mandate. Republicans hoped for this outcome when drafting tax reform, but having repealed the tax while leaving the rest of the law standing, they undermined their own argument. Roberts did get it entirely wrong in 2012, but O'Connor’s ruling is unlikely to stand when it goes before the Fifth Circuit Court and then potentially the Supreme Court.

California led the 17 states opposing Texas and 19 others. The pro-ObamaCare states will challenge the ruling on the grounds that it represents, as California Attorney General Xavier Becerra put it, “an assault on 133 million Americans with pre-existing conditions, on the 20 million Americans who rely on the A.C.A.‘s consumer protections for health care, on America’s faithful progress toward affordable health care for all Americans.”

The Democrats’ strategy in establishing ObamaCare was politically and practically brilliant. They constructed a new entitlement that could survive legal challenge even when it shouldn’t have, and millions of Americans now depend on the law, making repeal of any kind — via Congress or the courts — effectively untenable. Ask congressional Republicans. And, as we warned from the beginning, the Democrats’ ultimate goal was single-payer health care. ObamaCare was deliberately faulty and incomplete, for which the convenient “solution” is total government health care. Bernie Sanders and his ilk have made this plain with “Medicare for All.”

We hate to play the role of Debbie Downer, but this ruling may end up being little more than a blip on the radar. Congressional Republicans cannot outsource to the courts the work of ObamaCare repeal.

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