POTUS Trump continues to work hard to keep yet another campaign promise to the tens of millions who elected him by doing all he can to see the disastrous Obamacare healthcare law dismantled and thrown into the scrap heap.
WASHINGTON, DC – The Trump-Barr Department of Justice (DOJ) informed a federal appeals court on Monday that it agrees with Texas and the other states suing over Obamacare that President Donald Trump’s repealing of the individual mandate renders the entire law unconstitutional, and therefore should be struck down in its entirety.
This all turns on the legal doctrine of severability. Much of the time when a statute is unconstitutional it is actually only partially unconstitutional. Typically a court will strike down that part of the law, but sever it from the rest of the statute and uphold the remainder.
Pundits who have never studied or litigated severability will surely show up on television now posing as experts, and criticizing DOJ’s position. But writing as a former law school faculty member who authored the largest academic work on severability doctrine ever published, permit me to describe the argument and why it should be taken seriously.
President Barack Obama signed the Affordable Care Act (ACA) in 2010 when a Democrat-controlled Congress passed that statute without a single Republican vote in either the House or Senate. Various plaintiffs immediately filed suit. In the biggest lawsuit, a majority of states in the nation – along with the National Federation of Independent Businesses (NFIB) and several private individuals – filed suit in Florida, arguing that the ACA was unconstitutional.
The plaintiffs raised multiple constitutional issues. At the heart of the legal challenge is the doctrine of enumerated powers: The Constitution gives the federal government only limited powers, and so every provision of every law Congress passes must be authorized by one of the provisions of Article I, Section 8 of the Constitution.
One constitutional objection to the ACA was that Section 1501 of the ACA – which is the individual mandate that requires Americans to buy health insurance – is unconstitutional, because Congress’s constitutional power to regulate interstate commerce in Article I, Section 8, Clause 3 of the Constitution does not include the power to order human beings to buy something, thereby entering into the commercial realm where the government can regulate them.
Section 1201 of the ACA is the preexisting condition provisions of “guaranteed issue” and “community rating,” which ensures that no person attempting to purchase insurance can be denied coverage, and that a person cannot be charged more because of preexisting conditions. Section 1501 mandates that everyone buy insurance to offset the effect of the multi-billion-dollar costs arising from Section 1201.
…President Trump has had a major impact on the Fifth Circuit through his judicial appointments. Proven constitutional conservatives like Judges Don Willett, Jim Ho, Andy Oldham, and Kyle Duncan now sit on that court, under the mentoring of the fearless originalist Edith Jones and the libertarian-leaning Jerry Smith.
Regardless of how the Fifth Circuit rules in the case, the fact remains that the fifth vote to win at the Supreme Court is still Roberts. Many believe that his reasoning was such a stretch to save Obamacare the first time that he would find another rationale to do so now.
While that might be true, it does not need to be true. It is possible that the chief justice could play it straight from his 2012 reasoning, in which case the ACA should be struck down without the tax authorization.
It is also possible that President Trump will fill another Supreme Court vacancy before this case is decided by the Supreme Court – a decision that could come in 2020 but is more likely to come in 2021 – in which case Roberts’ vote might not even be necessary.
Suddenly, Obamacare is back in the legal crosshairs. If it falls under this legal challenge, President Trump would have a clean canvas on which to design fundamental market-based reforms to provide healthcare security and freedom for millions of Americans.
The case is Texas v. United States, No. 19-10011 in the U.S. Court of Appeals for the Fifth Circuit.
Those last few paragraphs above outline something very important regarding the Trump White House. It has managed to reorganize much of the federal government in a way that gives a great deal of power back to the people. The president has done so almost entirely on his own. Democrats oppose him. Many Republicans oppose him. And certainly the far left media opposes him. But in the end, he continues to outmaneuver them all to such a degree of success that even his supporters are amazed.
To anyone who thought President Trump was giving up the fight to improve the nation’s healthcare system they haven’t been paying attention. He is a man who doesn’t appear to know the meaning of the word quit.