Latest Obamacare ruling is an assault on logic | Opinion
Obamacare opponents have a new approach to attacking the law 2018-- incoherence.
On Friday, a federal judge in
Judge Reed O’Connor relied on the Supreme Court’s 2012 ruling that the mandate’s penalty is constitutional as a tax on those who choose to remain uninsured. But, as part of the 2017 tax bill,
But without the tax, the mandate doesn’t trigger anything. It persists as a directive that everyone have health insurance (with a few exceptions) but with no penalty for failing to comply. It has become a “mandate” in name only.
Why bother arguing about a now meaningless provision in a much larger law? Because it gave O’Connor a pretext to strike down everything else in the law. He claimed that the mandate, even in its denuded form, remains central to the ACA’s entire legislative scheme -- not just to the provisions regulating insurance markets to which it directly relates, but to everything. In legal terms, he found that it is not severable.
Whether a single provision that is struck down by a court can be severed from the law that contains it is a decision for
The consequences of this bizarre ruling could be devastating. If the entire ACA were to fall, millions of people who obtain coverage through the exchanges would lose it, and those with preexisting medical conditions might never be able to get it back. Millions more who gained coverage through the expansion of Medicaid would lose coverage, as well.
But that is just the start. The ACA contains hundreds of provisions that have nothing to do with insurance and affect almost every other aspect of the health care system. As a few examples, it enables drug companies to develop and market generic copies of expensive biotechnology drugs known as biosimilars; it rewards hospitals and physicians for forming accountable care organizations that coordinate care to improve efficiency and quality; it improves Medicare drug coverage; and it implements numerous prevention initiatives, like calorie counts on chain restaurant menus.
By what contortion of logic could the mandate, even if it still had practical effect, be considered central to provisions like these? Clearly,
Fortunately, the chaos that would accompany full ACA invalidation is not imminent. O’Connor’s decision will be appealed, and he declined to issue an injunction, at least for now, against enforcement of the law while those proceedings are pending. The Trump administration has said that it considers the law still to be in effect.
Ultimately, the appeals will likely reach the
These are issues more suited to
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