The first option—saving the mandate—would undo O’Connor’s complaint against the ACA, which is that the mandate can’t be justified as a tax now that Congress has reduced the “penalty” for not carrying insurance to zero. A law that raises zero dollars is not a tax.
But under settled constitutional doctrine, a law that raises even small amounts of revenue is a valid tax. In fact, the smaller the penalty, the easier it is to sustain it as a tax, because putative exercises of Congress’s taxing power run into trouble only if they are deemed attempts to coerce people’s behavior by subjecting them to sanctions. Nobody is going to be coerced into buying insurance by the threat of paying a single dollar.
The second option—a statute declaring the mandate severable— would solve the problem by making explicit what should have been clear already: In setting the penalty at zero, Congress indicated that Obamacare can exist without a mechanism coercing people to buy insurance. Making that point explicit shouldn’t be necessary, but it would put a definitive stop to the litigation.
The third approach might be the simplest: Repeal the mandate. Without a penalty attached, the mandate isn’t doing anything anyhow. (Set aside here the debate about whether a mandate with a stiffer penalty might be good policy because, as matters stand, Congress is not going to enact that policy.) Like the human appendix, the no-penalty mandate is a holdover from a previous era and now serves no useful function. Also like the appendix, it exposes the larger system to danger, because it can suffer an attack (like the current litigation) that threatens to blow everything up. Repeal, like an appendectomy, would get rid of the useless thing and save the larger organism.
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Republicans might cheer this solution: They could (again) claim the victory of getting rid of something they’ve campaigned against for a decade. Democrats might be wary of handing Republicans that rhetorical victory, but they should recognize the policy win they’d get in return. A threat to the ACA would disappear, and the GOP would have voted for a statute that preserves that law’s whole regulatory apparatus, including the Medicaid expansion and the insurance subsidies.
Any of these solutions could be accomplished in a one-sentence statute, and any one of them would end the Texas lawsuit. The challenge is political. Republicans hold the Senate, Democrats will soon control the House, and the two parties don’t see eye to eye on much.
But the midterm election seems to have convinced some Republicans that it’s not good politics to relentlessly oppose protections for people with preexisting conditions. This lawsuit is also shaping up to be a slog, and even staunch opponents of the ACA might not want it to be the backdrop for 2020.