The DOJ filed its official brief in the Texas case challenging Obamacare and they’re taking a position that would literally lead to my death. They are demanding that the courts void the entire law, which would mean the end of subsidies to buy health insurance and the end of the requirement that insurance companies cover those with preexisting conditions.
Texas v. United States, the latest assault on the ACA, is built upon a series of sophistries. The case was brought by a coalition of conservative states, led by Texas, which recruited two consultants to serve as plaintiffs. They assert that when Congress reduced the ACA’s penalty to zero dollars, it inadvertently destroyed the whole law—the tax credits, the exchanges, protections for preexisting conditions, Medicaid expansion, everything. According to Texas’ theory, the Supreme Court only upheld the ACA because it interpreted the penalty as a tax. But, they claim, a tax that collects zero dollars is not a true tax. So the individual mandate can no longer be viewed as a tax, rendering it unconstitutional. And because Congress never intended the ACA to function without the individual mandate, the rest of the law must be struck down too.
This leap in logic makes no sense. It is true that taxes typically collect revenue, so perhaps the mandate cannot fairly be called a tax anymore. It could even be true that the zeroed-out penalty is now unconstitutional. But that does not matter, because if the penalty is illegal, it should be severed from the rest of the law. As the Supreme Court recently explained, when one provision of a statute is invalidated, courts should preserve the remainder of the law unless it is “evident” that Congress “would not have enacted those provisions … independently.” In other words, courts that strike down part of a law should not eviscerate the rest of it without evidence that Congress would’ve wanted that extreme result.Here, congressional intent is about as clear as it can get. In 2017, Congress declined to repeal the entire ACA but chose to zero out the individual mandate’s penalty in the tax bill. By doing so, it declared its belief that the law could function without an operative penalty, a lawful exercise of its legislative powers. But Texas claimed that by amending the ACA, Congress inadvertently demolished it, because the law cannot function without a penalty—even though Congress decided that it could. Thus, according to the plaintiffs, courts should simply sweep aside this legislative intent and invalidate the law top to bottom.
Their argument is absurd. If Congress intended to overturn the entire ACA, they would have voted to do that. There were bills to do just that, but the Republicans couldn’t get the votes to do so. The only thing they could pass was the voiding out of the tax penalty. But now they want the courts to do what they couldn’t get the votes to do in Congress. And that would leave me dead in very short order. Obamacare is not perfect by any means, but it’s the only reason I’m able to afford health insurance. It’s been reported that Attorney General William Barr did not want to take this position but Trump forced him to do so.