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Thursday, March 28, 2024 - 05:31 AM

INDEPENDENT CONSERVATIVE VOICE OF UPSTATE SOUTH CAROLINA

First Published in 1994

INDEPENDENT CONSERVATIVE VOICE OF
UPSTATE SOUTH CAROLINA

After 2017, most Republicans just wanted to forget about Obamacare. Thanks to one court, that'll be impossible to do now. More than a year after the GOP watched Senator John McCain kill their best shot at repealing the law, a judge in Texas just did what Congress could not.

For the GOP, who'd put aside any hope of toppling the law after the midterm, District Judge Reed O'Connor guaranteed that the issue isn't just back -- it's front and center. "As I predicted all along," President Trump tweeted, "Obamacare has been struck down as an unconstitutional disaster! Now Congress must help Trump pass a strong law that provides great healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!"

O'Connor, who was appointed by George W. Bush, heard the case at the request of 20 states that have been trying to get out from under this disaster of a health care exchange since 2010. Led by Texas Attorney General Ken Paxton, the states argued that since Congress got rid of the penalty for not having health care insurance in the tax bill, Supreme Court Justice John Roberts's rationale for upholding Obamacare no longer applied. Remember, back in 2012 Roberts cast the deciding vote to save the law by claiming that the individual mandate fell under the Commerce Clause.

"The Federal Government does not have the power to order people to buy health insurance," Roberts wrote. But it does, he went on, have the power to tax. So, in one of the most shocking and controversial defenses of Obamacare ever, the law -- and all of its freedom-crushing, conscience-violating, abortion-funding schemes -- survived. Now, thanks to the GOP's decision to do away with the individual mandate, Roberts's "tax" has been zeroed out. That means his argument -- and the court's entire justification for keeping Obamacare -- no longer applies. If the government isn't "taxing" people, then the Affordable Care Act can't be upheld under Congress's taxing power.

Of course, no reasonable person ever fell for Roberts's logic anyway. At the time, even Democrats -- including President Obama -- insisted the mandate wasn't a tax. Even ordinary Americans, writes the Federalist's John Daniel Davidson, didn't fall for the line. To them, "it was exactly what it appeared to be: a punishment for not following orders" So six years later, it's no surprise that a lot of people -- the Wall Street Journal included – are "admit[ting] to a certain satisfaction in seeing the Chief Justice hoist on his own logic."

But as gratifying as Friday's ruling was, there's a little trepidation on both sides about where the debate goes from here. For Republicans, the sting of last August doesn't exactly make them eager to pick up the issue and run with it. Not to mention that having lost the House, repealing the law (which was difficult enough under GOP control) will be next to impossible now. And the last thing anyone wants after eight years is for Republicans to negotiate a replacement from a weaker position. "The risk," the editors of the WSJ write, "is that the lawsuit will cause Republicans in Congress to panic politically and strike a deal with Democrats that reinforces Obamacare."

As usual, Democrats are content rolling the dice in the courts -- which is where they make most of their policies anyway. Just yesterday, Sen. Chuck Schumer (D-N.Y.) urged his party to fall back on old faithful: the judiciary. "We have a divided House and Senate," he said. "I think the courts have to be the first and best way to go."

But if there's one thing Roberts's 2012 decision taught us, it's that Congress can't rely on the courts to clean up its messes. It's time for both parties to stop surrendering their power to the other branches, Senator Ben Sasse (R-Nebr.) chided, as "a convenient way to avoid responsibility for controversial and unpopular decisions." The House and Senate, he writes in a blistering op-ed to his colleagues, keep "look[ing] to the nine justices to be super-legislators, to right the wrongs from other places in the process... We need a Congress," Sasse insisted, "that writes laws, then stands before the people and faces the consequences... This is the elegant, fair process the Founders created."

And it's the elegant and fair process voters deserve. There are plenty of viable alternatives to Obamacare that would give states back their authority, taxpayers back their consciences, and patients back their choices. "Politicians have long promised to replace Obamacare with solutions that help everyone," Heritage's Marie Fishpaw and John Malcolm point out. "It's time to deliver -- no matter which way the courts go."


Tony Perkins' Washington Update is written with the aid of FRC senior writers.

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