News Analysis Nov 10, 2020 2:30 PM EST

Supreme Court to hear case that could invalidate Obamacare

This is the seventh time aspects of "Obamacare" have been tested at the High Court and the second time this particular provision will be tested.

Supreme Court to hear case that could invalidate Obamacare
Nicole Russell Texas, US
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On Tuesday morning, the Supreme Court will again consider whether the Affordable Care Act's individual mandate is constitutional. This is the seventh time aspects of "Obamacare" have been tested at the High Court and the second time this particular provision will be tested.

In California v. Texas, the Justices will analyze three things: Whether the states and two individuals who sued the federal government can even do so in the first place—determining whether or not they have "standing," whether the fact that Congress reduced the penalty to zero plays a role in making the mandate unconstitutional, since technically, the mandate is no longer a tax. And the Court will look at something called severability, that is: If the individual mandate is unconstitutional, can it be severed from the ACA without striking down the entire law?

Eighteen states and two self employed residents of Texas, who claim that the ACA's individual mandate provision requires they buy health insurance they would not have otherwise bought without the mandate, sued the federal government. Seventeen states were allowed to intervene in the case in support of the ACA.

If you're interested in the case supporting Texas' position, that the individual mandate is constitutional, or the opposition's case, that the ACA is solid law and must remain, this symposium at SCOTUSblog features legal scholars arguing both sides. For example, Matthew Forys, the associate general counsel and chief of staff at the Landmark Legal Foundation writes that "the command to buy health insurance is unconstitutional" and Brietta Clark, law professor and J. Rex Dibble fellow at Loyola Law School, Loyola Marymount University, Los Angeles writes that "The coverage provision is still constitutional and the court should reject this latest pretext for attacking the ACA."

The Court has changed considerably since they last heard a case challenging the ACA and the individual mandate in 2012. At that time, Justice Roberts sided with the majority and "upheld the mandate on the grounds that it imposed a tax on individuals who do not obtain insurance." Now, the Court has Justices Brett Kavanaugh and Amy Coney Barrett, two Justices who were not on the Supreme Court in 2012 and who may be more sympathetic to the argument that the individual mandate is unconstitutional.

The Affordable Care Act is federal statute Obama signed into law in 2010. Proponents argued it has revolutionized healthcare in the United States and saved billions of dollars in potential costs. Opponents argue the government has no right to demand people participate in a healthcare plan.

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