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...........In 2012, in NFIB v. Sebelius, the Supreme Court upheld the constitutionality of the individual mandate by the narrowest of margins when Chief Justice John Roberts, providing the deciding vote, devised a novel theory construing the penalty associated with violating the individual mandate as a tax that Congress has the power to levy under the Constitution.
Texas argues that once the penalty is reduced to $0, it can no longer be considered a legitimate tax, and that therefore the individual mandate would no longer have a constitutional leg to stand on.
Moreover, Texas argues, in upholding the individual mandate, the Supreme Court appeared to rely on the argument that Congress considered the individual mandate to be a central—indeed, indispensable—component of Obamacare that is not “severable” from the rest of its provisions, and that without it, the rest of the law should be invalidated.
A group of 17 states led by California are defending the law, arguing that even a tax of $0 is still a tax, and that it was never Congress’ intent to get rid of the rest of Obamacare when it repealed the financial penalty associated with the individual mandates as part of last year’s tax bill.
In granting the plaintiffs’ motion, O’Connor stated, showing his agreement with Texas’ argument:
Quote:The [Tax Cuts and Jobs Act] eliminated that [individual mandate] tax. The Supreme Court’s reasoning in NFIB—buttressed by other binding precedent and plain text—thus compels the conclusion that the individual mandate may no longer be upheld under the tax power. And because the individual mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause—as the Supreme Court already held.
Finally, Congress stated many times unequivocally—through enacted text signed by the president—that the individual mandate is “essential” to the ACA. And this essentiality, the [Affordable Care Act’s] text makes clear, means the mandate must work ‘together with the other provisions’ for the Act to function as intended. All nine justices to review the [Affordable Care Act] acknowledged this text and Congress’s manifest intent to establish the individual mandate as the [Affordable Care Act’s] ‘essential’ provision. The current and previous administrations have recognized that, too. Because rewriting the ACA without its ‘essential’ feature is beyond the power of an Article III court, the Court thus adheres to Congress’s textually expressed intent and binding Supreme Court precedent to find the individual mandate is inseverable from the [Affordable Care Act’s] remaining provisions.........
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