|It’s a sad commentary that alarms go up among Washington elites when the Trump administration defends the Constitution and holds Congress to its word. That is, after all, what the Department of Justice did this week by agreeing with a federal court that all of Obamacare is unconstitutional.
Pundits declare that this decision will have disastrous political consequences for Republicans. The Constitution’s approval rating is far higher than Congress’, so I think reports of our demise are greatly exaggerated. However, if the pundits are right, the Trump administration deserves all the more credit for putting the Constitution and the rule of law ahead of politics.
When the Supreme Court upheld the individual mandate in 2012, Chief Justice John Roberts’ legal gymnastics could only find one plausible basis for it: Congress’ taxing authority. The mandate’s only saving grace was raising revenue for the federal government.
Unfortunately for Obamacare’s supporters, Congress reduced the fine associated with the mandate to $0 in 2017. Because it no longer raises revenue, even Chief Justice Roberts cannot characterize it as a tax. Obamacare was tied to the Constitution by a thin thread — a thread Congress cut in 2017.
And all of Obamacare must fall with the mandate. Congress didn’t include a severability clause, as it often does. Instead, the law stated at least six times that the (now unconstitutional) mandate is “essential.” The rule of law requires courts to take Congress at its word that the rest of the law is inseparable from the mandate.
The end of Obamacare is not the end of health care reform, but the beginning. Each state can now decide for itself what type of health care system it wants and how best to provide for those with pre-existing conditions, just as the Founders intended.
States like Texas will be able to return to their plans for pre-existing conditions that use high-risk pools; other states, like Massachusetts, can opt for a system along the lines of Obamacare or something else entirely. The Trump administration knows the sky is not falling on health care — it’s now the limit.