On Tuesday, November 10, the US Supreme Court heard oral arguments in a lawsuit brought by 18 states (of which Texas is the lead) asking the Court to strike all of the Affordable Care Act (Obamacare), including the popular provision that prohibits insurance companies from refusing insurance to people with pre-existing medical conditions.
A piece of legislation is often a complicated machine, in which the consequences of different provisions are supposed to coordinate with one another like the different gears of a clock. Sometimes one part of the machine can be removed without damage. If the second hand is removed from a clock, but the minute and hour hands remain, the clock still tells time. But removing an internal gear may well stop any of the hands from moving, and may make the clock as a whole (at best) decorative rather than functional.
Originally, the individual mandate for securing health insurance within the ACA system was to have been enforced by a tax penalty. The Court’s reasoning when it upheld the law, in 2012, was that it was constitutional as an exercise of Congress’ power to tax, on the basis of this penalty. But that clause was rendered ineffective when Congress reduced that tax penalty to zero in 2017.
Texas argues that a system that raises no revenue is not an exercise of the tax power at all, and this renders the whole of the law unconstitutional. Texas is saying, in effect, that Congress has removed an essential gear, the clock has no further value, and the Court should accordingly throw it in the trash.
In the arguments Tuesday, some of the Justices expressed a good deal of skepticism about this line of thought. They suggested that the individual mandate can have what they call “hortatory” value, a value in simply urging people to do the right thing, and so be part of an overall constitutional system, even if the penalty for violating it is set at zero.
In Pill Form:
It is unlikely there will be any rapid-fire decision. When the Supreme Court hears a full-dress oral argument of this sort in the fall, it typically issues its opinion in the matter some months later, any time between January and June. Will this one appear closer to January? or closer to June? Your crystal ball is as good as anyone else’s!