Why the ACA Might Be In Trouble

There's no doubt that the ruling by a Texas judge that the Affordable Care Act is unconstitutional is judicial activism at its worst. There's also no doubt the ruling will be appealed to a Circuit Court and that it will likely be reversed, thus setting the stage for round three in front of the Supreme Court, where the conventional wisdom is that Chief Justice John Roberts will once again save the day and rescue the beleaguered law from the clutches of its adversaries.

There's just one problem with that logic, and it has to do with the opinion Roberts authored and the manner in which the law was written. First, let's look at the ruling handed down by U.S. District Judge Reed O’Connor. In a nutshell, O'Connor wrote that since the Supreme Court ruled that the individual mandate was constitutional because Congress has the power to enact taxes, now that Congress has rescinded that tax, the mandate is unenforceable and therefore the entire law is unconstitutional.

Here's where we get to the dicey part. Because the Affordable Care Act was written without a severability clause, he may be right. What is a severability clause, you ask? Basically it's a provision that allows for part of a law to be tossed out without affecting the rest of it. Like it or not, the mandate is joined at the hip to the ACA; you can't legally separate it from the statute. The Obama Administration was prepared to argue that it could be "severed" but Roberts beat them to the punch by allowing the mandate to stand in his rather "unique" decision.

The minority opinion authored by Antonin Scalia argued that the lack of a severability clause meant that the law must be scrapped in its entirety. And since Roberts himself never addressed the severability issue in his ruling, if and when this thing winds up in front of the Court - probably sometime in 2020 - he might have no choice but to uphold the Texas decision. To do otherwise would  mean that his original opinion wasn't worth the paper it was written on. And whatever else you may think of Roberts, he is aware of his role as chief justice. He will not diminish that role merely to keep alive a statute that was poorly written and just as poorly passed by Congress.

Deep down we always knew this day would come. A law that was despised by progressives and conservatives alike - though for entirely different reasons - appears to be fresh out of mulligans. I think it's fair to say that in retrospect Obama bit off more than he could chew. Despite the fact that key provisions within it remain popular, the law itself has placed an undue burden on many middle-class families and small businesses. A far less ambitious law that could have addressed some of the more pressing concerns that many people had would've been a much more prudent course for the Administration, and might very well have mitigated the slaughter Democrats endured at the ballot box in the 2010 midterms.

For the time being, nothing has changed. The law, despite the ruling, is still intact, though without a functioning mandate to enforce compliance. Donald Trump has ostensibly thrown this clusterfuck onto the plates of Nancy Pelosi and Mitch McConnell to fix. If anybody truly thinks that these two people, who represent very divergent constituencies, are going to come up with a workable solution that will survive legal challenges, I've got a bridge in Brooklyn to sell you.

Face it: unless Congress restores the tax BEFORE the Supreme Court hears the case - I wouldn't hold my breath - the signature legislative achievement of the Obama Administration will cease to exist. Granted, Democrats will have the issue of the decade to run on, courtesy of some very overzealous ideologues. But that will be small comfort to the millions of people who will once again be at the mercy of an insurance industry that will now gleefully return to the "good old days" when it routinely denied reimbursement for vital medications and treatments because of a pre-existing condition.

Looks like the pundits were wrong: you can take away an entitlement once it's been granted.