Friday’s decision striking down the Affordable Care Act, Texas v. United States, is wrong and should be reversed on appeal for reasons ably explained by its many critics. Yet in focusing their wrath on the Texas decision, the critics overlook the fact that Chief Justice John Roberts put us in this mess by making a bad choice in the Supreme Court’s 2012 decision upholding Obamacare, NFIB v. Sebelius. Roberts erred—and opened the door to the Texas debacle—by failing to follow a famous and well-established 200-year-old precedent set by Chief Justice John Marshall.
In his 2012 opinion, Roberts provided the deciding fifth vote for two rulings on the law’s individual mandate—the requirement that most Americans either purchase health insurance or pay a tax—which was considered the linchpin of the 2010 law. Joining the four conservatives, Roberts maintained that the mandate could not be sustained as an exercise of Congress’s power to regulate interstate commerce. But he joined the four liberals to uphold the mandate under the taxing power.
Congress’s 2017 move to eliminate the tax on nonpurchasers of health insurance gave rise to the theory that the legal foundation for the individual mandate had thereby disappeared, and that therefore the whole law should go down, too. So ruled the judge in Texas v. United States. The argument is nonsensical, because without the tax, there is no mandate: People are free to decline health insurance with no legal consequence. But the argument would not even exist if Roberts had voted to uphold the mandate as an exercise of the commerce power.