The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Nearly a decade after its enactment, the Affordable Care Act remains under constant siege. Indeed, covering Obamacare reminds me of the film Groundhog Day: the same script repeats itself over and over again, in slightly different contexts. The Supreme Court has twice rejected challenges to the Affordable Care Act's survival. Now, the third major challenge to Obamacare is on the Supreme Court's marble doorstep. The Fifth Circuit Court of Appeals held that the 2017 tax bill that eliminated the ACA's penalty also rendered the individual mandate–and perhaps other aspects of the law–unconstitutional.
The dissenting opinion scoffed at the entire case. Judge Carolyn Dineen King asked if it is really "necessary for a federal court to rule on whether the Constitution authorizes a $0 tax or otherwise prohibits Congress from passing a law that does nothing." Judge King pithily captured popular opposition to this case: why should the courts disturb a transformative federal law because Congress may have lacked the power to enact a single unenforceable provision?
The answer to this question is simple, but likely will be unsatisfying to critics. In 2012, Chief Justice Roberts was faced with a choice. He could have joined his four conservative colleagues who held that the entire Affordable Care Act was unconstitutional. Or, he could have agreed with a prominent conservative appellate judge who found that Congress could require people to buy insurance as a means to regulate the nationwide health care marketplace. Either option would have settled the status of the nascent law with finality. Obamacare was constitutional, or it wasn't. There would be no doubts.
The Chief Justice chose door number three. He agreed with Justices Scalia, Kennedy, Thomas, and Alito that the ACA did not merely regulate interstate commerce, but imposed an unconstitutional mandate to engage in commerce. But he did not stop there. Roberts concluded that the ACA could be saved because the law's penalty resembled a tax, and Congress's taxing power is broader than its commerce powers. This split-the-baby approach provides the answer to Judge King's question. Had Chief Justice Roberts definitively resolved the status of the ACA, it would be completely unnecessary to decide whether reducing the penalty to $0 rendered the mandate unconstitutional. But he didn't make that ruling. Now, when Congress altered the penalty, we have to assess the effect of that alteration on the ACA's constitutionality.
Roberts's steadfast effort to chart a middle course effectively rewrote Congress's handiwork. And by identifying factors that saved the mandate, Roberts recognized that the absence of those factors would doom the mandate. Rather than having a steady, stable legal regime, we are left with what I've described as "Schrödinger's mandate"–a law whose validity turns entirely on what Congress does after the fact, regardless of what Congress intends. In the pursuit of moderation, Chief Justice Roberts left the ACA dangling by a metaphysical string–a string that Congress sliced in 2017.
Now, I'll level with you. The mere fact that Congress toppled the saving construction did not require Texas and other red states to bring this lawsuit. The Plaintiffs could have simply concluded that Congress's decision, at most, rendered the individual mandate unconstitutional. And because the government would take no action to enforce the mandate, a lawsuit would have been meaningless. But the conservative attorneys general didn't take that approach. They argued that if the mandate was unconstitutional, the entire law had to fall. And two private plaintiffs argued that the ACA was a bad policy that required them to buy expensive, unwanted policies. Here, the Plaintiffs' case blends fidelity to constitutional principles with advancement of policy preferences.
I don't begrudge the red states any more than I fault blue states who bring similar cases. Lawfare is colorblind. Conservative and liberal attorneys general alike bring audacious legal cases based on thin legal reeds, to achieve goals the political process cannot support. But this case does not rest on gossamer threads. Indeed, I think Texas v. U.S. is a stronger case than the two previous challenges the Supreme Court considered. Chief Justice Roberts opened the door to this argument by saving the ACA under certain circumstances. If those circumstances are no longer present, Obamacare is unconstitutional, at least in part. That holding would be far simpler than some of the decisions we've seen in recent years. But the Court could go the other way. In his customary role as the swing vote, Chief Justice Roberts will decide whether to let Texas through the door he opened, or slam it shut.