Hiltzik: Obamacare is constitutional, says Biden
While much of the country has been riveted by ex-President Trump’s trial in the U.S. Senate, the Biden administration has continued to dismantle Trump’s legacy brick by brick – most recently, reaffirming that the Affordable Care Act is, indeed, constitutional. .
In a letter sent this week to the clerk of the Supreme Court, Biden’s Justice Department informed judges that it had overturned Trump’s position that the law should be overturned.
“Following the change of administration, the Justice Department reconsidered the government’s position,” Deputy Attorney General Edwin S. Kneedler wrote.
Rather than imposing a new burden on those covered, the 2017 amendment … simply eliminated any negative financial or legal consequences of choosing not to purchase health coverage.
Deputy Attorney General Edwin Kreedler, in a letter to the Registrar of the Supreme Court
As we reported, the Supreme Court is considering a lawsuit brought by Texas and several other Red states claiming two points.
First, by reducing the penalty for violating the ACA’s individual mandate to zero, the tax reduction measure passed by the Republican Congress in December 2017 made the individual mandate unconstitutional.
The argument is that the Supreme Court initially declared the 2010 law constitutional by interpreting the individual term penalty as a tax, for the enactment of which Congress has almost unlimited constitutional power.
Reducing the penalty to zero eliminated that tax, so the warrant is unconstitutional, according to the reasoning. Oddly, the lawsuit argued that removing the penalty turned the law into an unconstitutional mandate to purchase insurance.
Second, the plaintiffs argued that the warrant is not separable from the rest of the ACA, meaning that if it falls, the entire ACA falls.
Both claims have been widely ridiculed by legal experts, but have been accepted by a conservative federal judge in Texas in 2018. A conservative majority in a federal appeals court more or less ruled on the questions, but the judges did not rule them totally out of order either.
The Trump administration has set its sights on Texas and the other plaintiffs, declare the law unconstitutional and refusing to defend it in court. The Supreme Court accepted the case early last year and heard oral argument the week after the election.
Biden’s victory made it virtually certain that the federal government would act to protect the ACA. Once the Senate has come under Democratic control, this could be done by enacting a one-line amendment that makes it clear that the mandate is severable from the law, thus rendering the trial moot.
The DOJ letter is a more direct tactic, although there is no guarantee that a majority of the court will accept it.
California and other blue states stepped in to manage the defense. Seven Friends of the Court brief supporting the law were submitted to the Supreme Court, including briefs from the health insurance industry, hospital associations, the American Cancer Society and more than 16 others patient advocacy organizations and 56 health lawyers and economists.
Taken together, the briefs show not only that Texas’ argument is prima facie silly, but also that the consequences of rescinding the ACA would be dire. The law made changes to so many aspects of the American health care system that it would be nearly impossible to disentangle them.
Additionally, rescinding the law would endanger the health coverage of more than 133 million Americans and return the country to a pre-ACA landscape in which insurance clients with pre-existing conditions as serious as cancer and diabetes and as harmless as hay fever would be faced with refusals or heavy surcharges from insurers on the individual market.
Kneedler’s letter expressing the Biden administration’s position that nothing in the tax reduction law converted the individual mandate of a tax into an unconstitutional mandate to buy insurance.
“Rather than placing a new burden on those covered,” Kreedler wrote, “the 2017 amendment… simply eliminated any negative financial or legal consequences of choosing not to purchase health coverage.
The Biden administration further claims that, even if the court finds the mandate unconstitutional, it is clearly severable from the rest of the ACA, just as Congress had predicted: “The 2017 Congress which reduced the amount to zero. of the shared responsibility payment … simultaneously left the rest of the ACA in place.
And so, according to the Biden administration, the court should do it.