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The Biden Department of Justice informed the Supreme Court that they no longer think Obamacare is unconstitutional despite the Trump DoJ saying it was. It’s highly unusual for one administration to contradict another before the Supreme Court, but Biden is desperately trying to save what’s left of Obamacare, even though enrollment numbers are down and premiums are going up.
At issue is the constitutionality of the individual mandate. The states that brought the suit say that if the mandate is currently inoperative and not raising any money, it can’t be considered a tax. And since the mandate is an integral part of the law, if it’s unconstitutional, the entire law must be unconstitutional.
Washington Free Beacon:
The Trump administration endorsed those arguments before the justices and declined to defend Obamacare in court. Wednesday’s letter retreats from that position, arguing instead that the zeroed-out mandate “preserved the choice between lawful options,” albeit without consequences for non-compliance.
The letter adds that if the Court deems the mandate unconstitutional, it should strike that particular provision and salvage the rest of the law—something the Court seemed inclined to do during oral arguments in November.
By normal Court practice, an initial vote in the case would have followed a few days after the Nov. 10 argument. The majority opinion has likely been assigned for several months.
Legal arguments aside, the justices have had several opportunities to kill Obamacare and have yet to deliver a death blow. The reason is not written in any law book, but rather in the book of politics. The resulting chaos if Obamacare disappeared would cause a lot of anguish and would leave millions of people without insurance.
During a pandemic? The justices read the papers too and follow the polls. The storm of criticism from liberals and the media isn’t supposed to affect their opinions. But don’t kid yourself by thinking it doesn’t.
So where does that leave us?
During oral argument in the case, the justices seemed unlikely to scrap the legislation entirely, though it was not clear whether a majority would find the individual mandate unlawful. Chief Justice John Roberts and Justice Brett Kavanaugh, both conservatives, suggested they supported severing the individual mandate provision from the rest of the sprawling law.
Kneedler, who has served in the Justice Department for more than 40 years under presidents of both major political parties, wrote in the letter that the department was not seeking to file more briefs in the case. A decision is expected over the summer.
Obamacare is far too intertwined in the American health care system to kill. Thousands of regulations and a large bureaucracy ensure its survival. Barack Obama set out to transform the American health care system and, for better or worse, he succeeded.
With or without the individual mandate, the insurance marketplace will remain open, subsidies for buying insurance from the marketplace will continue, and the plans will continue to get more expensive with coverage people don’t need or want.
Democrats will look to build on Obamacare by resurrecting some of its provisions and including a “public option” for those who want the government to run health insurance. Quality of care will decline. But hey! At least everyone will be “covered.”