A Republican judge’s opinion claiming that the entire Affordable Care Act must be struck down is so poorly reasoned that even the Cato Institute denounced it on Wednesday.
Cato, which was originally known as the Charles Koch Foundation, tried and failed to convince the Supreme Court to strike down the key provisions of Obamacare in 2012. The conservative think tank’s health policy director, Michael Cannon, was one of the architects of King v. Burwell, the last political lawsuit asking the Supreme Court to undercut the law.
And yet, in a short piece published on Cato’s website on Wednesday, Cato senior fellow Ilya Shapiro argues that Judge Reed O’Connor’s latest attack on Obamacare is wrong.
To be sure, Shapiro peppers his analysis with complaints that the Supreme Court missed its chance to implement a libertarian utopia where people who can’t afford health care are simply left to die. “Friday’s ruling gave me a wistful thought about what might have been,” Shapiro writes. “But this case just isn’t the silver bullet that will finally kill” a law that allowed 20 million people to obtain health care coverage.
O’Connor’s opinion in Texas v. United States rests on the theory that, when Congress passed the Trump tax bill in 2017, it secretly repealed the entire Affordable Care Act at the same time.
The original Affordable Care Act requires most people to either carry health insurance or pay higher income taxes — a provision widely known as the law’s “individual mandate.” The 2017 tax law functionally repealed the individual mandate by setting the amount of taxes people must pay if they don’t have insurance at zero.
O’Connor’s opinion claims that this zeroed-out mandate is unconstitutional, a decision which should have no practical effect whatsoever because the amended mandate does absolutely nothing.
But then O’Connor’s opinion takes a weird turn, concluding that the completely impotent mandate is “essential” to the whole law — and therefore that the law must be struck down in its entirety.
That leap is too much, even for Cato’s Shapiro. “Congress had the opportunity to sever as much of Obamacare as it wanted,” he writes, so Congress “effectively ratified the entirety of Obamacare with a $0 mandate.” Shapiro concludes that he is “quite skeptical that the severability ruling will be upheld on appeal, even by the conservative-friendly Fifth Circuit.”
With Shapiro’s rejection of O’Connor’s opinion, Cato joins a growing list of prominent conservative commentators and institutions, including Jonathan Adler (another architect of the King litigation), Sen. Jerry Moran (R-KS), and the Wall Street Journal editorial page, all of whom expressed doubts about O’Connor’s poorly reasoned opinion.