February 28, 2018

ED MORRISSEY: 20 States Sue To End ObamaCare — And They Might Have A Point.

The original 5-4 decision on NFIB v Sebelius et al was intellectually shaky at the time, especially with its reliance on a lower-order argument on the power of taxation. Removing the tax penalties from the mandate eliminates the factual crutch used by Justice Roberts. In the syllabus to his majority opinion, Roberts expressly found that “the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause,” on which he expands shortly afterward.

Without the tax penalty, the entire structure becomes problematic — at least if we go by Roberts’ opinion that carved out the constitutional niche in the first place.

So yes, the removal of the tax does make the mandate ripe for a court to strike down. The mandate, though, is also meaningless without the penalty. The question is whether striking down the mandate would cause the court to strike down the entire ACA — and that seems unlikely.

This wouldn’t even be an issue to discuss had the GOP fulfilled its longstanding promise to repeal ObamaCare.

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