Take John Roberts at his word . . . and make it unconstitutional.

Hmmmmmm . . . could the GOP kill ObamaCare simply by disavowing one thing?

By —— Bio and Archives--September 20, 2017

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I bet no Congress has ever done this before: Intentionally change a law specifically for the purpose of making it unconstitutional. A legislative poison pill of sorts. Yet has there ever been a law that needed it as badly as this one does? ObamaCare is unconstitutional on its face, yet Chief Justice Roberts saved it in 2012 with a rather novel interpretation that said the individual mandate isn’t really what it clearly is.

Why not clarify via new legislation that the law is every bit as unconstitutional as Roberts should have found it to be in the first place? James Blumstein, director of Vanderbilt University’s Health Policy Center, thinks it just might work:

Recall how the Supreme Court split when it upheld ObamaCare in 2012. Four justices thought the law’s individual mandate—the requirement that Americans buy health insurance or pay a penalty—was unconstitutional. Another four thought it was hunky dory. What broke the tie was a novel opinion by Chief Justice John Roberts, who upheld the penalty by declaring it a tax.

With good lawyering, the GOP can take advantage of that premise. Republicans could pass a two-page bill clarifying that Congress did not intend to use its taxing power to enforce the individual mandate and disavows the same going forward. Congress could state that it intends ObamaCare to contain no severability provision—meaning that, as the four dissenting justices agreed in 2012, the entire law must fall if the mandate is unconstitutional.

The Senate considered a “skinny” repeal bill in July, and this would be even skinnier—call it the “twiggy” repeal. But given that it clearly relates to taxes, it ought to be able to pass with 51 votes under budget reconciliation.

What would happen next? The Justice Department could declare the Affordable Care Act unenforceable in its entirety, relying on the new legislation and the 2012 decision. This would be within the executive branch’s power to enforce the law in a proper, constitutional manner. Congress could provide a phase-out period by revoking the taxing authority for ObamaCare effective, say, in two years.

John McCain, Lisa Murkowski and Susan Collins don’t want ObamaCare gone

I actually think it would probably work, provided the new law was written in a way that riffs off Roberts’s opinion and eliminates everything he said saved the law. What could Roberts do then? It’s his job to toss out unconstitutional acts of Congress.

The problem, though, is that there’s no reason to think Congress as currently configured would ever actually do it.

John McCain, Lisa Murkowski and Susan Collins don’t want ObamaCare gone. (If you agree with Rob then most other Republicans don’t really want it gone either, but that’s a discussion for another day.) The three no votes on “skinny repeal” weren’t merely concerned about some nuance. They are flat-out opposed to repeal, both because they’re liberals at heart and also because they love the media fawning they get as renegade Republicans.

Why should anyone think these three would go along with a bill that does what Blumstein suggests? The challenge in repealing ObamaCare isn’t that it’s too complicated legislatively to do it. It’s that there isn’t the will to do it among enough members of Congress, and Mitch McConnell doesn’t care about it enough to pressure anyone to do it.


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Now, if there was a way for the Trump Administration to do this administratively, now we might be talking. But I can’t imagine what that would be since you’d still have the same legislative language Roberts used to call a fine a tax. So that’s probably a no-go.

When Mitt Romney was the nominee in 2012 he said he would issue waivers to all 50 states as soon as he took office. We never got to find out if he really would have, but even that wouldn’t have killed it since some states actually wanted to participate. There are probably other approaches Trump could take if he really wanted to, but unless you get rid of the law then the next Democrat president could simply revive it.

I’m really not sure how you resolve a situation that most everyone agrees is a problem, but that not enough people have the courage to actually confront. I guess in the United States of America circa 2017, we don’t.

Dan Calabrese -- Bio and Archives | Comments

Dan Calabrese’s column is distributed by HermanCain.com, which can be found at HermanCain.com

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