Ethics & Public Policy Center

Stop Tilting at Windmills, Conservatives. Come up With Actual Health-Care Solutions.

Published in The Washington Post on December 19, 2019

Wednesday’s ruling by the U.S. Court of Appeals for the 5th Circuit invalidating Obamacare’s individual mandate has raised the possibility that the entire bill might be struck down as a result. That’s highly unlikely to happen given legal doctrine and the Supreme Court’s makeup. Opponents should instead think about how to reform health policy rather than hope for a judicial lightning bolt to strike Obamacare down.

The circuit court’s ruling makes sense under constitutional law. Congress can only pass laws pursuant to its constitutionally assigned powers. The mandate was originally upheld by the Supreme Court because the court found that it could be construed as an exercise of the power to tax and spend, an enumerated power in Article I of the Constitution. That was because the mandate wasn’t really a mandate; individuals could refuse to buy health insurance and pay a small tax penalty instead.

This justification went out the window, however, after Congress eliminated the penalty in 2017. The 5th Circuit’s ruling simply recognizes that Congress lacks constitutional authority to require anyone to purchase health insurance. It would have been constitutionally revolutionary for them not to have ruled this way.

Click here to read the rest of this piece at the Washington Post’s website.

Henry Olsen is a senior fellow at the Ethics and Public Policy Center.


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