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The Future of Obamacare Is In the Supreme Court Again

The Supreme Court heard arguments on November 10, 2020 regarding the Affordable Care Act, popularly known as Obamacare. The legal challenge was brought by the state of Texas and other Republican-controlled states. California and other Democrat-controlled states opposed the repeal of Obamacare. A majority of the Court appeared skeptical of the case, even with the additional of newly confirmed Justice Amy Barrett. Oral arguments were held for two hours over the phone due to the Covid-19 pandemic.

The initial challenge to Obamacare in 2012 was that it was unconstitutional for the federal government to force Americans to purchase health insurance or pay a financial penalty. This provision was known as the individual mandate. The Supreme Court held 5-4 that the individual mandate in the Affordable Care Act was constitutional because Congress has the power to enact taxes. In 2017, Congress amended the Affordable Care Act to set the individual mandate to zero dollars. Soon thereafter, Republicans began claiming that the entirety of the Affordable Care Act is unconstitutional because the mandate was no longer a valid tax.

Texas argued that the entirety of Obamacare must be unconstitutional because the individual mandate is unconstitutional after Congress reduced the tax to zero dollars. Chief Justice John Roberts and Justice Kavanaugh both seemed to agree that Congress probably did not intend to repeal all of the Affordable Care Act in 2017.


The Chief Justice contended that primary issue was “whether Congress would want the rest of the law to survive if an unconstitutional provision were severed” and that the fact that Congress left the majority of the Affordable Care Act alone was evidence that Congress had not intended to repeal the healthcare law. Indeed, Obamacare was dramatically saved in 2017 when the late Senator John McCain famously gave his thumbs-down to his own party’s attempt to repeal the law.

Most laws typically contain a provision that allows the rest of the document even if one part of the law is considered unenforceable. Most contracts contain a similar provision. Obamacare is rather unique in that it doesn’t contain a typical severance clause. However, due to Congress’s numerous aborted attempts to repeal Obamacare in 2017, there is more than ample evidence that Congress intended to keep Obamacare even as Congress reduced the individual mandate to zero.

More Tax Mandates?

Justice Thomas saw a link between the individual mandate and a proposed mask mandate that President-Elect Joe Biden proposed. Justice Thomas inquired whether upholding the individual mandate as a tax might also permit the federal government to enact a mask mandate with a tax penalty as well.

California v. Texas will have a significant impact on the future of the country. The case may potentially decide not only what is legal with healthcare insurance, but also with the pandemic response and potentially other federal actions that could be written as a tax on individual Americans.

Justice Thomas’s comment is a poignant one – if it is constitutional for the federal government to tax Americans for not purchasing health insurance, why wouldn’t it be constitutional for the federal government to tax Americans for not wearing a mask during a pandemic?

The first issue is which branch of government should be deciding this matter. The Court typically leaves tax questions to Congress. If a voter has an issue with the amount of taxes he pays, he should write to his senator or representative, not file a lawsuit.

However, framing laws as a tax potentially expands the power of the federal government in a slippery slope that Americans might be uncomfortable with. If the government can require Americans to buy healthcare or pay a tax, why can’t the government require Americans to buy guns or pay a tax? If the government can require Americans to wear a facial mask or pay a tax, can the government also require Americans to attend church or pay a tax?

However, the slippery slope is not nearly as absurd as it sounds. Enforcing and proving certain mandates will be difficult. It’s easy to prove that someone purchased healthcare or a firearm – just attach the invoice or receipt to your tax return. What about mask wearing though? It’s impossible to prove someone is wearing a mask outside all the time without taking other unconstitutional measures.

The other barrier to the slippery slope is the potential infringement of other constitutional rights. Requiring Americans to attend a church or pay a tax is a clear infringement of the establishment clause. Similarly, requiring Americans to pay a tax or violate their right to free speech, free press, or other constitutional rights will likely also be unconstitutional. Poll taxes are unconstitutional because they violate the right to vote and is strong evidence that the Court can find a bright red line on the government’s tax powers.

Although it seems unlikely that the Affordable Care Act’s individual mandate will survive, the rest of Obamacare will probably survive it. However, the individual mandate has already opened a new debate about how far the federal government can impose other mandates on Americans.

Do I Need a Lawyer If My Insurance Plan Has Been Cancelled?

The goal of Obamacare is to provide expanded health care for everyone. If an insurance company or a health care provider is refusing health care service, then you may have a remedy. A personal attorney who specializes in health care can fight for your legal rights.


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