One of the provisions included in Republicans’ tax reform bill will end the monetary penalty imposed by Obamacare in January 2019 without ending the mandate to purchase health insurance — something Congress likely couldn’t have done under the budget reconciliation rules used to pass the tax bill. By removing the Obamacare fine — or, according to Roberts, the “tax” — the Affordable Care Act likely became, or will become, unconstitutional under the opinion issued by Roberts and the dissent published by four other justices in the 2012 case.
The reason the entire health care law could be determined unconstitutional if the individual mandate is struck down is that the Supreme Court has determined in previous cases that when a single provision of a law is ruled unconstitutional and it’s clear Congress wouldn’t have passed the bill without that provision, the entire law must also be thrown out.
Former Justice Antonin Scalia explained this precedence in the dissent he authored in the 2012 case that upheld Obamacare’s constitutionality, writing, “even if the remaining provisions can operate as Congress designed them to operate, the Court must determine if Congress would have enacted them standing alone and without the unconstitutional portion. If Congress would not, those provisions, too, must be invalidated.”
Because Congress itself declared the individual mandate was “essential” to the entire law’s operation when the Affordable Care Act was passed, a reasonable case could be made that Congress would never have passed the ACA without the individual mandate, and thus the Supreme Court should strike down the entire law if it rules the mandate unconstitutional.
If forcing Americans to buy health insurance is “essential” to the ACA, then the unconstitutionality of that “essential” mandate could very well sink the entire health care law, accomplishing in an instant what the Republican-led Congress has failed to achieve since taking power following the 2016 elections. – READ MORE
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