A judge in Texas rules that Obamacare is unconstitutional

By I.K. | WASHINGTON, DC

LIKE WEEDS AND SUPERHEROES, the Affordable Care Act (ACA), known as Obamacare, is hard to kill. While Democrats see it as an unbroken and unbowed success, Republicans see it as a persistent creep towards socialism. Since storming Congress in 2010 they have done their best to take it down, only to find themselves stymied by internal divisions over what might replace it. Yet on December 14th a federal judge in Texas provided what many Republicans hope will be a coup de grâce to the law. It is unlikely to be so simple.

The legal contestation concerns a technicality known as severability. As originally passed, the ACA contained a requirement that all Americans obtain health insurance or pay a penalty, known as the individual mandate. When the Supreme Court was asked to weigh in on the law’s constitutionality in 2012, it held that this was a legitimate exercise of Congress’s power to tax. But while passing their tax-cut bill in 2017, Republicans also zeroed out this penalty, nixing the individual mandate. Some 20 Republican attorney-generals then sued, arguing that without the mandate, the entire law would need to be struck down as unconstitutional—in other words, that the provision was inseparable from the rest of the law.

Many constitutional-law experts—including libertarian ones who do not much like Obamacare—dismissed this argument. But Judge Reed O’Connor, a federal judge appointed by George W. Bush, took it seriously. On December 14th he wrote that “because rewriting the ACA without its ‘essential’ feature is beyond the power of an Article III court”, the individual mandate was inseparable from the rest of the law’s features—all of which would need to be dismantled. The Department of Justice has declined to defend the law, leaving the task up to Democratic state attorney-generals.

They are sure to appeal, and until their efforts are exhausted the law will remain in effect. It is unclear whether the Supreme Court will take on the case. Chief Justice John Roberts, who joined with four liberal justices to save the ACA in 2012, remains on the court. The same judges could overrule the severability ruling and preserve the law despite the presence of two conservative justices appointed by President Donald Trump.

If the ruling were to stand, the consequences would be disastrous. When the Supreme Court considered the law in 2012, Obamacare was not yet in effect. Today, it is in full swing. Required coverage of people with pre-existing conditions would disappear. Young adults counting on remaining on their parents’ insurance until the age of 26 would be suddenly booted into uninsured status. The insurance exchanges set up by the law covered 11.8m people last year.

Expansion of Medicaid, the government health-insurance programme for the very poor, would be undone overnight. Some 15m who gained coverage would lose it. States like Ohio and Kentucky that are heavily reliant on these Medicaid dollars to pay for counselling and treatment for those addicted to opioids would also be dealt a blow. Since Obamacare went into effect, the share of Americans without health insurance has dropped from 16.8% to 10.2%—the decline was even steeper in states that chose to expand their Medicaid programmes. Without the ACA—and with a sensible replacement unlikely to pass through a divided Congress—this progress would surely be reversed.

An appeals court is unlikely to look kindly on Judge O’Connor’s ruling. Even for Republicans, that would probably be the best outcome. In November’s mid-term elections, the party was pummelled by voters nervous about health-care costs and a possible evaporation of protections for people with pre-existing conditions. If the Republicans do demolish those protections, they might pay an even bigger price at the next election.