The Justice Department has sided with a federal judge in Texas, asking the U.S. Court of Appeals for the Fifth Circuit in New Orleans to strike down Barack Obama’s signature legislation: the Affordable Care Act.
Hopefully, the Fifth Circuit will agree. If so, the issue will likely go to the U.S. Supreme Court and we will see if Chief Justice John Roberts has had second thoughts since his bizarre decision to abandon his originalist judicial principles.
Here’s the backstory.
The Court in June of 2012 ruled in a 5-4 decision that Obamacare’s mandate requiring people to have qualified health insurance or face a penalty was constitutional.
At issue was whether the Constitution’s Commerce Clause allowed the federal government to mandate health insurance coverage. The Court’s four liberals said yes, mostly because they have never seen a government-expanding provision they didn’t like.
The Court’s five conservatives initially said no. But over the next few months Roberts went rogue, looking for some rationale—any rationale—to affirm the mandate. He finally decided that the penalty for not having coverage was a tax, and the federal government had the power to tax.
Ergo: the mandate was constitutional.
CNN legal analyst Joan Biskupic has published a recap of Roberts’s metamorphosis. She writes, “However the chief would explain it [his reasoning]—and he has not explained it beyond his written opinion—the case added a new dimension to a man who insisted that he always decided cases based on the law.”
Liberals love it when conservatives demonstrate “a new dimension.”
She adds, “Viewed only through a judicial lens, his moves were not consistent, and his legal arguments were not entirely coherent.” Couldn’t agree more.
Biskupic suggests, “His moves may have been good for the country at a time of division and a real crisis in health care …”
Yeah, how’s that effort to heal divisions working out for the country?
Fortunately, the 2017 tax reform legislation, the Tax Cuts and Jobs Act, zeroed out the penalty. (It didn’t actually eliminate it because of the legislative maneuver used to pass the bill. It just made the penalty zero.)
Several states filed suit claiming that since the Court linked the constitutionality of Obamacare to the mandate and penalty, effectively eliminating the tax penalty made the law unconstitutional.
U.S District Judge Reed O’Connor agreed in December, striking down not just the mandate but the whole law.
We expect that the issue will eventually work its way back to the Supreme Court.
The four liberals are still there, as is Roberts. So people ought not to be holding their breath.
But it’s at least possible that Roberts has learned something as a result of straying from his self-professed adherence to law and opposition to judicial activism—both of which he abandoned in his Obamacare decision.
We don’t know why Roberts went rogue, but the latest case and the Justice Department’s decision could give him cover to redeem himself. Let’s hope he takes the opportunity.