The latest constitutional challenge to Obamacare now has its date in court set. The Supreme Court of the United States (SCOTUS) will hear the case, Texas v. United States, on November 10 — a week after the general election.
Texas is the lead plaintiff along with a plethora of other Republican-led states. Attorney General Ken Paxton will spearhead arguments for the plaintiffs while those in opposition consist, largely, of a coalition of blue states. California Attorney General Xavier Becerra has led that group after filing amicus briefs on behalf of the federal government.
Notably, the Trump administration is not defending Obamacare in the suit despite the federal government being named the defendant, going so far as to issue agreement with Paxton’s argument.
The Texas Public Policy Foundation also filed amicus briefs with the plaintiffs on behalf of two individuals.
The case centers on the healthcare law’s penalty, deemed a “tax” by SCOTUS in the 2012 NFIB v. Sebelius decision.
In that decision, the court construed the penalty, the law’s fine for failing to enroll in the Obamacare insurance marketplace, as a tax and thus within Congress’ Article I authority. That decision then upheld the rest of the law.
But in 2017, Congress’ Tax Cuts and Jobs Act zeroed out the penalty for non-compliance.
After that, in 2018 this current challenge was filed. The plaintiffs argue that since the “tax” — or penalty — is $0, then that means there is no tax upholding the law based on the Roberts Court’s reasoning. Further, plaintiffs believe that the rest of the law, such as the exchange and pre-existing conditions provision, is inseverable from the “tax” provision, and is thus entirely unconstitutional.
The defense, compiled of the blue states, argues that the plaintiff’s argument about the tax is invalid but also that the rest of the law is severable from the mandate.
Two state attorney generals who filed an amicus brief, Dave Yost of Ohio and Timothy Fox of Montana, argue that the mandate is unconstitutional but that the entire law should not be struck down along with it. It also argues that the “severability doctrine” effectively allows the court to rewrite laws and should be discontinued.
In December of last year, the Fifth Circuit Court of Appeals sided with Texas, declaring the insurance mandate unconstitutional. But in the decision, the Fifth Circuit sent the “severability” question back down to a district court.
In January, SCOTUS denied a petition to fast-track the case to be heard in the October 2019-June 2020 term, pushing it to the coming term.
The court make-up leans “conservative” in ideology 5-4, but Roberts, who wrote the NFIB v. Sebelius opinion, sided with the court’s “liberal” block on the 2012 challenge.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad watching and quoting Monty Python productions.