The Ghost in the Obamacare Machine

We are being told, by people who know much more than we do, not to worry about Friday’s federal-court ruling overturning Obamacare. The judge, a 2007 Bush nominee, was hand-picked for his amenability to the opposition; his ruling contains convoluted reasoning that will surely be overturned by the Fifth Circuit; even the Trump administration is saying it won’t enforce the ruling until appeals are exhausted.

In short, Trust the Process.

We’d like to, but reality jumped that timeline a long time ago. And in this case, there’s a lot that can go haywire.

Because the argument is about the existential nature of something that has no effect.

You may be forgiven for thinking that Obamacare passed Constitutional muster years ago, following its 2012 Supreme Court approval. You may wonder what fresh grounds a lawsuit filed only last January could find against it. And you may be befuddled about why last year’s tax cut has anything to do with it.

So let’s begin at the end. The tax cut, you may recall, “eliminated” the individual mandate, effective next year. But it didn’t do exactly that: What it eliminated was the penalty for the Individual Mandate, rendering it toothless. The Mandate remains law, but without any enforcement provision.

That, in the good judge’s opinion, is what makes the Mandate unconstitutional — and the rest of Obamacare with it.

Oh dear, now you’re confused again.

Let us revisit why the Mandate was declared constitutional in the first place. Calling it a “tax” wasn’t the Obama administration’s first argument: They wanted it under the interstate-commerce clause. But that wasn’t going to get five votes on the Supreme Court, while noticing that it shows up on your 1040 served the purpose: If it looks like a tax and acts like a tax, then it’s really a tax, and taxes are cool.

Only now the tax is zero. Which means it’s no longer a tax, which means it’s back to being an interstate-commerce provision, which makes it unconstitutional, which brings the house down with it.

Oh yeah, that part.

If you’ve ever dealt with contracts, even as someone who just signs them, you may have noticed the boilerplate “severability clause”: If one part of the contract is ruled unenforceable, the rest remains in effect. The judge’s ruling states there is no such detachment for the Individual Mandate: If it goes, so does the rest. And that was in fact a prominent argument during the interminable debates, that the ACA was a delicate contraption, that the Mandate was integral to making it work.

Functionally integral. We don’t recall it being legally integral. And the many examples the judge cites from the ACA text itself — that the Mandate is “essential”, that removing it would “undercut” the rest of the legislation — do not claim that the legality of the act stands or falls on the Mandate. He is, to use a favorite criticism among his kind, legislating from the bench.

Hold on, you still have that look on your face. How can a toothless law be unconstitutional?

Well, you see, because it’s still on the books, that means the government is giving you stern looks when you don’t buy health insurance. That guilty feeling we all share is our government inflicting unconstitutional harm upon our souls.

Really. He said that.

Okay, what he said is that citizens remain “obligated” to buy health insurance, and thus they are suffering actual harm from a paper mandate without penalty.

So an Obamacare provision that has no practical consequences, and thus no practical existence, is being used to overturn the rest of the law that has very practical consequences, because its ineffable nature switched from one thing to another when we weren’t looking.

And honestly, despite what people who know better are telling us, we don’t know why a Supreme Court that has declared corporations to be people and racism dead wouldn’t buy that. It’s not like they have any grasp of reality, either.