The case against the Patient Protection and Affordable Care Act continues to move forward; on March 25, the U.S. Department of Justice sided with the Texas Public Policy Foundation and the attorneys general from 20 states, in calling for the courts to strike down the law commonly known as Obamacare.
The reasoning for why the ACA should be struck down comes from U.S. Supreme Court itself, in NFIB v. Sebelius, a 2012 decision. In NFIB, Chief Justice John Roberts rejected the government’s claim that the Commerce Clause of the U.S. Constitution made the Affordable Care Act legitimate; instead, he invented a new argument for the Obama administration—that the ACA was constitutional under Congress’s power to tax.
His reasoning was that the “individual mandate penalty,” borne by those who failed to buy qualifying insurance, was a source of revenue—and therefore a tax. On this one point, and this one point alone, the ACA stood.
But in 2017, the Tax Cuts and Jobs Act set that penalty at zero—meaning that it no longer generates revenue and can no longer be considered a tax. And without that tax, by Roberts’ own logic, the ACA no longer has any constitutional basis.
That’s what we at the Texas Public Policy Foundation, along with the attorneys general of 20 states, argued before a federal judge in Fort Worth last year, and he agreed. He further ruled that the individual mandate is an integral part of the ACA, and can’t be separated out.
“The Supreme Court’s only reasoning on the topic thus supports what the text says: The Individual Mandate is essential to the ACA,” he wrote.
Although the Justice Department will no longer defend the ACA, some states will.
“The District Court’s ruling poses a dangerous threat to the healthcare of millions of Americans,” California Attorney General Xavier Becerra said.
Yet millions of Americans — including TPPF’s individual clients — have already been harmed by the ACA. They have lost their chosen physicians and they have lost their affordable health insurance. Facing huge deductibles and bank-breaking premiums, what they have now is far more expensive and far more limiting than the plans they had before.
TPPF’s clients, like millions of other Americans, are no longer the primary decision-makers about their health care and their health insurance. Instead, they have to — by law — purchase what the ACA exchange sells them, on its own terms.
More than 2 million people have dropped their ACA plans since 2016 because they can’t afford the huge increases in premiums. Millions more put off seeing their doctor because they can’t afford the huge deductibles.
The truth is that the ACA is broken, and has been from the start. This legal challenge should be seen by all—Congress and citizens alike—as an opportunity to craft something better. And states should seize that opportunity to bring the health care issue down to the state level, just as Gov. Greg Abbott says Texas should do.
California might want its own version of the ACA, or even something more centralized. Fine. It should be free to do so.
But in Texas, we might want something different — something that brings doctors and patients closer together, instead of separated by more and more bureaucracy.
The case is now pending before the Fifth Circuit Court of Appeals.
Lawsuit exposes fatal flaw in ObamaCare’s individual mandate
Set aside the whole Affordable Care Act
Striking Down Obamacare Isn’t Judicial Activism But leaving It In Place Certainly Is
Trump is right not to defend ObamaCare
Supreme Court has new reason to dismantle ObamaCare
Texas is leading the charge to expose ObamaCare’s house of cards
Obamacare Still Hurting Families
Other Court Documents:
State Democrats’ Opening Brief