An appellate court dominated by conservative judges just ruled that a central provision of the Affordable Care Act—its mandate that all Americans obtain health insurance—is unconstitutional, a decision that could lead to Obamacare getting struck down in its entirety.
The two judges writing for the majority on the 5th Circuit Court of Appeals held that the individual mandate, which the Supreme Court ruled in 2012 was a proper exercise of Congress’ power to levy taxes, no longer amounted to a tax. That’s because, as part of the GOP’s 2017 tax bill, the penalty for failing to purchase insurance was reduced to zero. As a result, said the court, that penalty could no longer be viewed as a tax because it could not bring in any revenue for the federal government and therefore had been rendered unconstitutional.
That ruling places the entire Affordable Care Act in jeopardy because of a legal doctrine known as “severability.” The plaintiffs in this case have argued that the individual mandate cannot be “severed” from the rest of the law, meaning that if the mandate is not constitutional, the law as a whole is not constitutional.
The majority (which includes one judge appointed by Donald Trump and another by George W. Bush) punted on this question, asking the trial court to investigate the matter further. However, that lower court already ruled that the mandate was non-severable, and could do so again.
The choice to defer ruling on this all-important issue could be a way for conservative jurists to avoid a final decision from the Supreme Court striking down Obamacare before next year’s election. Doing so would shield Republicans, including Trump, from attacks that they’ve blown up a law that has long enjoyed majority support. It could also allow the Supreme Court to wait until a possible second Trump term to issue the final word.