To Save Obamacare, Repeal the Mandate
Giving Republicans a symbolic victory could allow Democrats to preserve the ACA.
In declaring invalid the entire Affordable Care Act, Judge Reed O’Connor claimed he was respecting congressional intent. Didn’t Congress say the individual mandate was “essential” when it first adopted Obamacare? So if the mandate is now unconstitutional because it can no longer be sustained as a tax, O’Connor reasoned, Congress must have wanted the entire law to fall with it.
The reasoning is specious—but set that aside. If congressional intent is the key to O’Connor’s decision, Congress can intervene. And the best way for it to do so is not to enter the litigation, as the incoming speaker of the House, Nancy Pelosi, has said she’ll do. It’s to legislate.
Congress could fix the problem by saving, severing, or sinking the mandate. First, Congress could make the mandate constitutional again by raising the penalty for not having insurance from zero dollars, where Congress set it in 2017, to one dollar. Second, Congress could declare the individual mandate severable from all other parts of the ACA. Third, it could repeal the mandate—something that might once have wrecked the ACA but that now would have little or no effect on the rest of the regulatory framework.
The first option—saving the mandate—would undo O’Connor’s complaint against the ACA, which is that the mandate can’t be justified as a tax now that Congress has reduced the “penalty” for not carrying insurance to zero. A law that raises zero dollars is not a tax.