With Justice Amy Coney Barrett joining its ranks, the Supreme Court now includes six self-declared conservative jurists who purport to abhor legislating from the bench. A mockery will be made of those claims today if that new supermajority seeks to invalidate the entire Affordable Care Act, passed by Congress in 2010, because Congress removed one of its components in 2017.
Obamacare is gargantuan and complex. It sets up health insurance marketplaces for the self-employed, authorizes subsidies to make that insurance more affordable, encourages states to expand Medicaid, prevents insurers from discriminating against people with preexisting conditions, and more.
One piece was the individual mandate, deemed constitutional in a Supreme Court ruling eight years ago but reviled by Republicans in Congress and this president. On initial passage, many considered the mandate one leg in a three-legged stool, without which the whole shebang could not stand.
No more. Three years ago, Congress zeroed out penalties on Americans who chose to go without insurance as part of a sweeping tax cut bill. That surgical removal of what those lawmakers considered an economic tumor shows that the intent was not to kill the entire patient.
Moreover, the larger law has proven pragmatically resilient since. Which probably didn't surprise one Barack Obama, who as a candidate in 2008 championed a comprehensive health reform plan without an individual mandate, before reversing himself as president.
The question for the nation's highest court in California v. Texas is simple: Can legislators excise one provision of what Barrett in her confirmation hearings called "a very long statute" without a court then forcing the entire complex architecture to collapse?
The answer is obvious: Lest Barrett, Neil Gorsuch, Brett Kavanaugh, Samuel Alito, Clarence Thomas and John Roberts wish to out themselves as activists, the ACA must stand.
