In declaring invalid the entire Affordable Care Act, Judge Reed O’Connor claimed he was respecting congressional intent. Didn’t Congress say the individual mandate was “essential” when it first adopted Obamacare? So if the mandate is now unconstitutional because it can no longer be sustained as a tax, O’Connor reasoned, Congress must have wanted the entire law to fall with it.
The reasoning is specious—but set that aside. If congressional intent is the key to O’Connor’s decision, Congress can intervene. And the best way for it to do so is not to enter the litigation, as the incoming speaker of the House, Nancy Pelosi, has said she’ll do. It’s to legislate.
Congress could fix the problem by saving, severing, or sinking the mandate. First, Congress could make the mandate constitutional again by raising the penalty for not having insurance from zero dollars, where Congress set it in 2017, to one dollar. Second, Congress could declare the individual mandate severable from all other parts of the ACA. Third, it could repeal the mandate—something that might once have wrecked the ACA but that now would have little or no effect on the rest of the regulatory framework.
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.
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.
Torching the ACA would be more disruptive than is widely appreciated. Beyond the fact that tens of millions of people would lose their health-care coverage, the ACA is now integral to a lot of the basic plumbing of the health-care system. Ripping it out with no replacement is likely to generate chaos across the country, and not just for the newly insured.
At least some Republicans, then, might be interested in gaining a symbolic victory and avoiding a self-inflicted wound. Why not give it a shot? The House should pass a one-sentence bill adopting one of these three fixes. Send it to the Senate. See what happens next. If the Senate goes along, it’ll be a moment of bipartisanship and responsible congressional behavior. And if the Senate refuses, the Democrats can pummel the Republicans for supporting an irresponsible lawsuit.
Unfortunately, House Democrats appear to be preparing to waste their opportunity. In response to last Friday’s decision, Pelosi issued a statement that “the House of Representatives will move swiftly to formally intervene in the appeals process.” That’s unnecessary: A consortium of blue states, led by California, has already intervened in the case, assuring that any appeals will be vigorously litigated. It’s also unlikely to work: The House almost certainly lacks standing to intervene in the case.
Instead of running to the courts, the House of Representatives should do what it’s supposed to do. It should pass a law.
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