Could we lose Obamacare during a pandemic?

 Written by: Griffin Harris

The venerated political columnist Michael Kinsley once quipped that there was “a prize for being liberals’ favorite conservative”: a column in the New York Times. Today, however, every liberal’s favorite conservative seems to hold a different job title: Chief Justice of the Supreme Court. 

Confirmation of this belief echoed across newspaper front pages and blue-checked Twitter accounts through June and July, when the conservative-controlled Supreme Court issued several decidedly liberal rulings—protecting LGBTQ workers from job discrimination, declining to strike down a restrictive Louisiana abortion law, reminding the President that his office does not put him above the law—with Chief Justice John Roberts in, and often writing for, the otherwise liberal majority. “John Roberts is just who the Supreme Court needed,” The Atlantic declared. He is a “political genius,” Slate offered; “the real” John Roberts, the New York Times explained, was a “judicial minimalist.” Or what about this, from Newsweek: “Conservatives blast John Roberts”? The enemy of my enemy, the old saying goes… 

More than any recent case, though, the left-leaning public’s conception of Roberts–as a conservative who is jurisprudentially fair, intellectually honest, politically sensible, and, ultimately, not that conservative–owes to his vote in the most politically prominent ruling of his 15-year tenure. That is, of course, the Obamacare case. 

That decision is the jewel in Roberts’ reputational crown of bipartisanship. Presiding over a Court with a five-to-four conservative majority, Roberts defied expectations and sided with his liberal colleagues in saving the Affordable Care Act, President Obama’s landmark healthcare law. It was a surprising but nonetheless proud victory: an assurance from the nation’s highest court that the right to healthcare for millions of U.S. Americans was secure.

That, at least, is the popular version of NFIB v. Sebelius, the 2012 case. It’s also a misleading version: the constitutionality of the ACA is far from settled, and Roberts’ ruling left the law in a vulnerable, not soundly protected position that might soon be exposed. For years, the already thin legal ice on which Obamacare stands has been melting in the heat of a conservative political climate, as state and federal legislatures, Republican-appointed federal judges, think-tanks, and this presidential administration have sought to undermine the Act. When the Supreme Court revisits the ACA in its coming term, in California v. Texas, that ice could finally crack. 

Indeed, the case that originally upheld Obamacare could be the legal foundation for a future ruling that potentially strikes down the very same law. This apparent contradiction is the result of Roberts’ excessively narrow and surreptitiously conservative opinion in Sebelius, and it is the reason that that ostensible victory in 2012 deserves more scrutiny from the left than it gets. 

To assess the legal insecurity of Obamacare today, it is important to understand that decision from eight years ago. The Court was asked to answer several questions about the constitutionality of the ACA—and some are of such temple-rubbing complexity that without a law degree, they are hardly worth visiting. But one is most relevant to the Act’s forthcoming challenge. 

One of the most important features of the ACA was its “individual mandate,” a provision that required most U.S. citizens to have healthcare or else pay a fine to the government. Any act of Congress must be justified under one of the powers the Constitution grants the federal government, and the individual mandate, creators of the law argued, was acceptable because of the federal legislature’s power “to regulate commerce… among the several states.”  

That part of the Constitution—the interstate commerce clause—is the grounds on which a huge number of federal laws are passed. The Court has historically recognized it to be an extensive power, acceptable for use even when interstate commerce is not immediately or obviously relevant to the law. For example, in 1964, the Court upheld the federal ban on racial segregation in public accommodations for an Atlanta motel because many of its clients came from other states, and excluding clients of a certain race would impact interstate commerce. In another famous decision, the Court ruled that Congress could ban an individual farmer from growing wheat on his farm to feed his livestock. That ruling noted that even though the farmer was growing his own wheat for his own consumption in one state—an act that appears to be neither commerce nor of interstate relevance—he would therefore not buy others’ wheat. The national wheat market, in the aggregate, might change as a result. 

The ruling in that 1942 case, Wickard v. Filburn, set a broad standard: an activity might be “local” and it “may not be regarded as commerce,” but “if it exerts a substantial economic effect on interstate commerce” then the Congress may regulate it. So when the 111th Congress justified the individual mandate in Obamacare on Commerce Clause grounds, it made sense: one person not having healthcare could, in the aggregate, substantially impact the massive national market for healthcare. 

The much-praised Roberts decision, however, rejected that argument, claiming that Congress’ authority to regulate commerce did not include the power to order or create commerce. “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing,” Roberts wrote of an individual mandate for those uninsured, “would open a new and potentially vast domain to congressional authority.” 

Instead of rendering the individual mandate and possibly the entire law unconstitutional, Roberts found another way to uphold it: he called the individual mandate a tax. Congress also has the power to tax and spend; and the individual mandate, Roberts noticed, was indeed a kind of tax, listed in the tax code, collected by the IRS, and used to fund government programs. “Because the Constitution permits such a tax, it is not our role to forbid it,” Roberts concluded. So the law, passed by the progressive party, stood because of a conservative justice. 

The immediate result was a victory for those who recognize and advocate for the right to affordable healthcare. The most comprehensive program in U.S. history to accomplish that goal was still in place. But Roberts’ decision, many legal scholars on the left noted at the time, was not the protection some imagined it to be. 

Because the individual mandate was a tax—the only Constitutional way it could exist–then it could be changed in tax laws. Had that mandate stood on the ground that Congress had argued for—under Commerce Clause authority—undermining it would require repealing or at least altering the health care law, a much heavier political undertaking. 

So when Republicans took control of both houses of Congress and the White House in 2017, Roberts’ decision became an invitation to accomplish a long-standing policy goal. But to repeal and replace Obamacare and its individual mandate, as Trump and others had promised, was difficult, and despite near-total legislative power, the GOP failed to do so. It did not, however, fail to pass the Tax Cuts and Jobs Act of 2017, which reduced the individual mandate to tax to zero dollars, rendering it effectively useless—and possibly now unconstitutional. 

This fall, the Court will hear California v. Texas, an apt name for a lawsuit that is essentially groups of conservative states versus groups of liberal ones, one suing to undo the ACA and the other counter-suing to protect it. The case asks two questions about the current status of the ACA. The first question: if the tax penalty for not having health insurance is zero dollars, is the mandate still “operative”? Does it still exist? The answer will almost certainly be no. For the mandate to be legal, Roberts originally argued, it must be a tax; if no tax penalty exists, then the mandate cannot stand. 

And that will bring the Court to a second question. Is the individual mandate “severable” from the rest of the ACA, a 900-plus-page law? In other words, if the individual mandate is no longer constitutional, must the entire law be unconstitutional? 

This outcome is harder to predict. Some powerful conservative institutions, including the Wall Street Journal editorial page, have argued against a total repeal by the Court of the law, and Republican legislators are cautious of continuing the attack on Obamacare that cost them control of the House in 2018. But lower court decisions in this case, all of which have been decided by conservative justices, hold that the mandate and the ACA are inseparable: if one falls, so must the other. The Trump administration and its Department of Justice—to which the Roberts Court has been mostly sympathetic—have filed briefs in the case arguing for the entirety of the Affordable Care Act to fall. 

What would that mean, for the Supreme Court to invalidate the Affordable Care Act? For the only branch of the federal government not accountable to the electorate to destroy a massive healthcare program in the middle (or, hopefully, near the end) of a pandemic? 

Without the Affordable Care Act, more than 12 million low-income adults could lose access to their Medicaid entitlements, according to a New York Times analysis. Without the law,  133 million U.S. Americans with pre-existing conditions would no longer be guaranteed coverage. A study by the Urban Institute found that a repeal of the Act would cause the number of uninsured people to rise by 19.5 million. Another study estimated that over 2 million young people under the age of 26 could also lose access to the insurance they can receive through their parents. And all this would happen in the middle of a pandemic that has already killed more than 150,000 and will soon infect 5 million. Losing the ACA would mean nothing less than chaos. 

It would also mean shattering any pretense that John Roberts has tried to build of a Supreme Court that is jurisprudentially constrained or above the political fray—a pretense that his fellow conservatives have put little effort into maintaining. To strike down Obamacare would be the ultimate act of judicial activism, of partisan battle. 

Roberts often speaks about the Court as if he were a civics teacher: preaching what can feel like platitudes about independence, the eyes of history, the importance of fairness and balanced power to our government. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said last year. There are legal complexities and intricacies to this case, but perhaps this case is less about those than it is about much more basic questions: does he actually believe that? Should John Roberts really be your favorite conservative?

Edited by Evangelos Kassos

One thought on “Could we lose Obamacare during a pandemic?

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