ObamaCare Loses in Court — Again

The Fifth Circuit Court struck down the individual mandate as unconstitutional.

Nate Jackson · Dec. 19, 2019

The Fifth Circuit Court answered four important questions regarding ObamaCare yesterday — including ruling the individual mandate unconstitutional — but ultimately punted the case back down to a lower court to reconsider the broader implications for the entire law. Two years ago, the Republican-controlled Congress made the “tax” penalty for not buying health insurance $0, which the Fifth Circuit Court decided means it isn’t a tax and thus was beyond Congress’s power to legislate. ObamaCare defenders insist the $0 penalty makes the question moot. Remember, the only reason the penalty was considered a tax in the first place was because of the machinations of Chief Justice John Roberts, who in 2012 rewrote ObamaCare in order to save it.

From the court’s ruling:

First, there is a live case or controversy because the intervenor-defendant states have standing to appeal and, even if they did not, there remains a live case or controversy between the plaintiffs and the federal defendants. Second, the plaintiffs have Article III standing to bring this challenge to the ACA; the individual mandate injures both the individual plaintiffs, by requiring them to buy insurance that they do not want, and the state plaintiffs, by increasing their costs of complying with the reporting requirements that accompany the individual mandate. Third, the individual mandate is unconstitutional because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power. Fourth, on the severability question, we remand to the district court to provide additional analysis of the provisions of the ACA as they currently exist.

Expanding on the tax question, the court reasoned, “Now that the shared responsibility payment amount is set at zero, the provision’s saving construction is no longer available. The four central attributes that once saved the statute because it could be read as a tax no longer exist. Most fundamentally, the provision no longer yields the ‘essential feature of any tax’ because it does not produce ‘at least some revenue for the Government.’”

On severability, what the court means is this: Without the individual mandate to force everyone into participating in the law, can the law as a whole still stand? We’d argue the clear answer is and always should have been that ObamaCare is unconstitutional. The federal government has no enumerated power to force citizens into any kind of commerce. That such an opinion is not universally held is a testament to many things — chiefly, a woefully inadequate educational system that fails to instruct students on basic civics, as well as the socialist bent of one of our two major political parties, which redefines “rights” to mean “things someone else has to provide for me.”

Legally, however, the severability question must now be answered by a district court — the court where District Court Judge Reed O'Connor last year ruled the law was unconstitutional. Then the law will inevitably be reconsidered by the Fifth Circuit and then, perhaps, the Supreme Court. Maybe John Roberts will end up with a chance to redeem himself, albeit a decade too late.

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