This week, Congress will be dominated by two stories: the ongoing talks
about a coronavirus “relief” and economic “stimulus” bill and Amy Coney
Barrett’s confirmation hearings.
Obamacare is a major issue in Judge Barrett’s confirmation. This is
because if she is confirmed before the election, the first major case she will
hear is an appeal of a case holding Obamacare unconstitutional. The
Trump administration is intervening in this case, which centers on the
theory that when Congress repealed the penalty for not complying with the
individual mandate, they effectively repealed all of Obamacare.
Many legal analysts, including some who were instrumental in the early
cases against Obamacare, do not think this is a winning argument since
Congress did not actually repeal the mandate, they merely reduced the
penalty for noncompliance to zero. A future Congress could reinstate the
penalty with a majority vote. In addition, Congress did not intend to repeal
all of Obamacare when it repealed the penalty. Furthermore, it is doubtful
that the mandate is necessary for the functioning of the exchanges,
Medicaid expansion, or other parts of Obamacare.
The argument for overturning the law rests on Chief Justice Robert’s 2011
decision upholding the mandate as a valid exercise of Congress’ taxing
power. A tax is imposed by Congress to raise revenue; therefore, a tax that
they zeroed out is not a tax even if tied to an underlying activity, thereby
invalidating the mandate.
Another argument for overturning the law is that there is not a severability
clause stating that if one section of the bill is found unconstitutional, the rest
of the bill still applies. A case can be made that the Congress that passed
Obamacare intended the whole thing to fall if one piece fell.
As they did in 2018, Democrats are campaigning on the claim that
Republicans are going to take away your health care. Republicans claim
they will retain the “popular” parts of Obamacare. Republicans have no one
but themselves to blame for their failure to repeal Obamacare and replace
it with free-market health care policies that would usher in affordable,