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Obamacare's Enemy No. 1 Says This Is the Wrong Way to Kill It

March 28, 2019 in Economics

By Michael F. Cannon

Michael F. Cannon

In a dramatic reversal, the Trump administration has asked a
federal appellate court to uphold a lower-court ruling striking
down all of ObamaCare as unconstitutional.

You might expect me to be happy. The New Republic calls me
“ObamaCare’s single most relentless antagonist.”
The Week says I’m “ObamaCare’s fiercest
critic.” Give me five minutes, and I’ll explain how the
so-called “Patient Protection and Affordable Care Act”
ironically makes health insurance less ­affordable and reduces
protections for the sickest patients. I seethed when the US Supreme
Court unilaterally rewrote ObamaCare first in 2012 and again in
2015.

But rather than experience elation at this latest ruling,
I’m seething again, and for the same reason. In Texas v.
Azar, federal judge Reed O’Connor did ­exactly what Chief
Justice John Roberts did at the high court: jettison the rule of
law to achieve a politically desired outcome.

If opponents want to
strike down ObamaCare, they need better legal arguments than what
Judge O’Connor offered in Texas v. Azar, which is no different from
what Chief Justice Roberts did in his own rulings. Two wrongs don’t
make a right.

O’Connor followed the John Roberts playbook all the way
down to the tortured reasoning. He pretended the ObamaCare law
still mandates the purchase of health ­insurance, when it no longer
does. He pretended this phantom mandate injures the plaintiffs,
when it clearly does not. And he pretended Congress considered the
mandate inseverable from the rest of ObamaCare, even though
Congress itself had already severed the two.

To set the table, ObamaCare originally said taxpayers
“shall” obtain health insurance or else pay a
“penalty” of potentially thousands of dollars per year.
A command plus a penalty equals a mandate. Right there in the
statute, Congress claimed its authority to impose those provisions
come from its constitutional power “to regulate
Commerce.” The Supreme Court nearly struck down the whole law
in 2012, when a five-justice majority concluded the
Constitution’s Commerce Clause grants Congress no such
power.

The statute survived because one of those five justices —
Roberts — argued that one can interpret this penalty
“as a tax . . . on those without health ­insurance” and
therefore a constitutional use of Congress’ taxing power.
Roberts thus voted with four other justices to ­uphold
ObamaCare.

He was so busy rewriting the statute to achieve his desired
outcome that Roberts failed to notice the Constitution forbade such
a tax.

Back in 2009, ObamaCare’s authors initially sought to
impose a “tax” on those who failed to purchase health
insurance. But when they realized such a tax would have prevented
the bill from passing, they ­replaced it, invoking the Commerce
Clause to issue a command backed up by a …read more

Source: OP-EDS

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