The Affordable Care Act is unconstitutional and on balance makes access to health care less secure. Since President Obama signed the ACA into law in 2010, the executive and judicial branches have amended it in so many ways–outside of the legislative process–that it is even more wildly unconstitutional and more appropriate to refer to it as “ObamaCare,” a law that no Congress ever passed, nor ever could have passed.
Today, the Supreme Court will hear California v. Texas, a case challenging the constitutionality of ObamaCare. Given that the media have described me as “ObamaCare’s Enemy No. 1″ and “ObamaCare’s single most relentless antagonist,” you might think I want the Court to use this opportunity to strike down the law. I do not. I hope the Court will rule 9–0 against the plaintiffs.
As I have written previously, California v. Texas is a meritless case, both because there’s no mandate to challenge any more, under John Roberts’s taxing power argument or otherwise, and thus no one has standing to challenge it. I also disagree with the amicus brief my Cato Institute colleagues Ilya Shapiro (my sometime co‐amicus) and Josh Blackman filed in the case, which is a narrower take. I agree more with the standing and severability analyses of my sometime co‐author Prof. Jonathan Adler.
California v. Texas is worse than meritless, however. Conservatives rightly complain that in NFIB v. Sebelius and King v. Burwell, the Left persuaded the Supreme Court to throw out the rulebook to hand them a policy “win.” But now, it is conservatives who are doing exactly that in California v. Texas. It was wrong when the Left did it. It is wrong when the Right does it.
One of the reasons throwing out the rulebook is wrong is that now, those people on the Left who pressured the Court not to strike down the ACA in NFIB–and even more those who pressured the Court to rewrite the ACA in King–have zero credibility when they now appeal to the Court to follow the rulebook. If conservatives persuade the Supreme Court to throw out the usual rules to hand conservatives a policy “win,” ObamaCare supporters who cheered the Court’s rulings in NFIB and King will have no one but themselves to blame. He who lives by terrible judging may die by terrible judging.
Democrats have made dire predictions that the six Republican appointees on the Court will use this case to strike down ObamaCare in its entirety. That is unlikely in the extreme. If the Court uses California v. Texas to strike down ObamaCare, I will eat my hat. Such predictions are less about legal analysis than scaring voters into going to the polls to vote for Democrats.
But if we indulge that fantasy scenario, it is worth emphasizing that there would be serious benefits to overturning ObamaCare:
- Responsible polling consistently shows ObamaCare’s preexisting‐conditions provisions are unpopular. Eliminating them would end the race to the bottom they have sparked in health insurance markets.
- Health insurance premiums would plummet for the vast majority of Americans in the individual market.
- Innovations that protect people with employer‐sponsored insurance from preexisting conditions after they change jobs–innovations that ObamaCare destroyed–could return.
- Prices for oral contraceptives could stop skyrocketing and start to fall again, as they had been falling before ObamaCare made them “free.”
- Consumers could purchase only the coverage they want, which would protect many consumers from having to purchase coverage that violates their conscience.
- States could keep Medicaid‐expansion enrollees on the rolls, and could even offer subsidies to Exchange enrollees who lose their ObamaCare subsidies, but they would have to do it with current tax dollars, rather than by increasing the federal debt.
- Federal and state lawmakers would have to focus on reforms that actually work, have bipartisan support, and make health care subsidies less necessary. Congress could start by reforming the tax treatment of health insurance, which strips coverage from people with COVID-19 and other illnesses every day.
- Taxes would fall, stimulating the economy.
The fear that Democrats have generated about the Supreme Court using California v. Texas to overturn ObamaCare is hysteria, both because it won’t happen and because it wouldn’t be calamitous if it did. The most lasting injury it would inflict would be to the rule of law.