The case against ObamaCare is weak. It will probably succeed anyway.

The health care of tens of millions of people is on the line — so too is the very future of the Supreme Court itself

The Supreme Court.
(Image credit: Illustrated | iStock)

As the political battle over the vacancy created by the sudden death of Justice Ruth Bader Ginsburg intensifies, a great deal of attention will be paid to the fate of the landmark Supreme decision Roe v. Wade, and for good reason. But the first potentially historic opinion the court will be considering in the fall will not concern reproductive rights. On November 10 — exactly one week after one of the most important elections in American history, the Supreme Court will hear oral arguments in California v. Texas, the latest legal challenge to the Affordable Care Act. Not only will the health care of tens of millions of people be on the line — so too could the very future of the Supreme Court itself.

The argument made by the Attorneys General of Texas and 17 other states whose governors oppose the Affordable Care Act is that it suddenly became unconstitutional when Congress passed a large upper-class tax cut in 2017. One obscure provision of the new statute eliminated the tax penalty that adults who chose not to carry health insurance had to pay under the Affordable Care Act. The so-called "individual mandate" remained in the law but there would be no penalty for violating it. According to the state plaintiffs, this is a constitutional problem, since Chief Justice Roberts' opinion in NFIB v. Sebelius held that the individual mandate exceeded Congress' power to regulate interstate Congress but was constitutional under the federal tax power. Furthermore, they argue that the mandate cannot be severed from the rest of the law and therefore most or all of the rest of the statute (including the protections for patients with pre-existing conditions and the historic expansion of Medicaid) have to be struck down.

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Scott Lemieux

Scott Lemieux is a professor of political science at the College of Saint Rose in Albany, N.Y., with a focus on the Supreme Court and constitutional law. He is a frequent contributor to the American Prospect and blogs for Lawyers, Guns and Money.