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March 8, 2018

RANDY BARNETT: The New Challenge to Obamacare.

Readers may be familiar with a new constitutional challenge by 20 state attorneys general to the Affordable Care Act, which Ilya blogged about here. Their argument, in a nutshell, is that with the amount of the penalty for failing to have health insurance now set to zero, the individual insurance “requirement”–AKA the “individual mandate”–can no longer be justified as a tax. This is so because one of the essential characteristics of a tax is that it raises at least some revenue for the government. For this reason, the “saving construction” employed by Chief Justice Roberts no longer applies, as it is no longer even a “reasonably possible” reading of the insurance requirement, which now raises no revenue.

On this claim, the AG’s are on very strong ground. To the extent they are correct, the NFIB v. Sebelius was a bigger victory than we realized when it was decided, as it left the insurance mandate susceptible to being killed off in this way via reconciliation.

Because this constitutional claim makes sense, the attention will turn to the issue of standing and, perhaps, mainly to severability. If the insurance requirement is invalidated, does that bring down the rest of the Affordable Care Act?

Read the whole thing.

And it’s sad to have to say this, but Obama being gone — along with his implicit threat to go to war against SCOTUS over ObamaCare — might be a critical factor in Chief Justice John Roberts’ thinking.