Editorial: The case against Obamacare is so laughable, even conservatives on the Supreme Court balked

The Supreme Court heard arguments Tuesday in a lawsuit seeking to throw out the entire Affordable Care Act because Congress made it less coercive in 2017 than it was when the law was passed in 2010. It’s a ridiculous abuse of the court system, made even worse by the very real harm it could do to millions of Americans who rely on the ACA for health coverage today, with the COVID-19 pandemic hitting a record number of cases in this country.

Although the high court often deals with vitally important legal questions, rarely are the stakes as high or as immediate as the ones raised by California vs. Texas. The policies covering some 20 million low- and moderate-income Americans hang in the balance, as well as the protections the law provides all Americans with preexisting health problems who aren’t insured by their employer.

The Supreme Court should make short work of this misbegotten lawsuit. And at Tuesday’s oral arguments, both conservative and liberal justices voiced great skepticism about the arguments made by the plaintiffs — 18 Republican attorneys general and two self-employed Texans who complained about the costs the law imposed upon them.

The case is just the latest in a long line of challenges to the 2010 law commonly known as Obamacare, two of which led to Supreme Court rulings that preserved the ACA. In fact, this case uses as its jumping-off point the justices’ 5-4 ruling in 2012 upholding the law’s individual mandate, which requires virtually all adult Americans to obtain health insurance.

According to the court’s majority, Congress would not ordinarily have the power to order individuals to buy coverage, but because the insurance mandate was enforced with a tax penalty, it fell within Congress’ power to tax. After the Republican-controlled Congress reduced that tax penalty to $0 in the 2017 Tax Cuts and Jobs Act, the states fired a new shot at the ACA, saying the individual mandate had been rendered unconstitutional.

But as several justices noted, one seemingly insurmountable problem with the lawsuit is that zeroing out the penalty turned the mandate into a mere suggestion, incapable of forcing anyone to buy insurance or causing anyone harm. How can Congress overstep its constitutional authority when it’s not asserting any actual power? And how can anyone claim to be injured by a penalty that costs them nothing? The Texans say they have to spend more on health insurance now, but they can’t blame the mandate for that — and that’s the provision they’re challenging.

Nevertheless, a federal judge in Texas and two of three judges on a 5th Circuit Court of Appeals panel held that the plaintiffs had in fact been injured by the toothless mandate, whose very toothlessness made it (in their judgment) unconstitutional. The district judge went further, declaring that the entire ACA was invalid because the mandate was inseparable from the rest of the provisions.

The Trump administration not only declined to defend the law, it sought to have the ACA tossed out in its entirety. The appeal was brought instead by top Democratic officials in California and 19 other states, who have asked the justices to uphold the ACA on three grounds: The plaintiffs had no standing to bring the lawsuit, the mandate isn’t unconstitutional, and even if it were unconstitutional, the rest of the law should survive. They’re right on all three points.

Texas and company have argued that the mandate was the centerpiece of the law’s efforts to expand coverage, and that Congress would not have passed any part of the ACA if it knew the coverage provisions were off the table. And they’re right in one respect: At the time the law was being debated, the mandate was seen as essential to launching the new state markets where people not covered by large employers’ group plans would shop for insurance. Without the mandate, policymakers feared that only sicker, older people would seek insurance, causing premiums in those markets to spiral unsustainably upward as the number of people insured dropped.

But the situation had changed by 2017, when lawmakers decided not to repeal the ACA after a long and rancorous debate. Before Congress voted in December 2017 to zero out the penalty, the Congressional Budget Office had weighed in to advise that the mandate was no longer needed to stabilize the state markets. And the CBO was right — average premiums have actually dropped in the last two years. So as a practical matter, there’s no reason for the court to invalidate any other part of the ACA even if it somehow finds the mandate now to be unconstitutional. It’s also clear that Congress did not intend to revoke any part of the ACA when it reduced the tax penalty to zero; otherwise, it would have done so.

Beyond that, as the Republican attorneys general of Ohio and Montana argued in their friend-of-the-court brief, the justices don’t have any power under the Constitution to interfere with the constitutional provisions of the ACA even if they find the mandate unconstitutional. Rather than trying to determine what lawmakers intended, the brief argues, the high court should leave in place all of the constitutional provisions that still work without the mandate.

In this case, that would be the rest of the law. And although that wouldn’t be the perfect outcome for a case that never should have reached the Supreme Court, it would still be a good one.