LAURA HERNANDEZ, ACLJ
The American Center for Law and Justice (ACLJ) has filed an amicus brief in a suit brought by 16 states and two individual plaintiffs challenging the constitutionality of ObamaCare’s individual mandate. As you probably remember, the individual mandate required millions of Americans to buy and indefinitely maintain health insurance or face annual penalties.
The ACLJ was involved in several challenges to the individual mandate after ObamaCare was initially enacted, either representing parties or filing amicus briefs. We filed a critical amicus brief with the Supreme Court of the United States on behalf of 119 Members of Congress in 2012, and the Court agreed with us that the Commerce Clause of the Constitution did not authorize Congress to compel Americans to buy health insurance they did not want. But, according to the Court, the individual mandate could be upheld as a constitutional exercise of Congress’s power to tax because the law imposed a tax penalty on people who did not purchase health insurance. The Court’s decision to label the penalty a tax was surprising for many legal reasons, but also because Congress repeatedly assured Americans that ObamaCare would result in no new taxes.
Fast forward to 2017. Congress passed the Tax Cuts and Jobs Act which, among many other things, eliminated the penalty for not purchasing health insurance. In 2019, Americans no longer had to pay any tax for not complying with the individual mandate. That was good news for those who had previously chosen to pay the penalty rather than buy expensive insurance they didn’t need. But now the only reason that the individual mandate was constitutional was gone. It remained as a bare command to buy insurance, and Congress does not have the power to issue such a bare command.
So sixteen states and two individual citizens sued in federal court asking that the individual mandate be held unconstitutional. The district court agreed with the plaintiffs and the case is now pending before the Court of Appeals for the Fifth Circuit. Our brief argues:
All three features that supported the [Supreme] Court’s “saving construction” of the individual mandate as a tax are now effectively nonexistent. This year, Americans were no longer required to make the shared responsibility payment with their income tax returns and were therefore not responsible for calculating their payment in accordance with such “familiar factors as taxable income, number of dependents, and joint filing status.” Because no payments have been made, no revenue will be generated. . . . And because the mandatory requirement no longer triggers a tax payment generating revenue for the government, the individual mandate is unmoored from any of Congress’s enumerated powers.
Without a constitutional power to lean on, ObamaCare’s individual mandate, the linchpin of the law, must fall.
The court will hear oral argument in early July.
Used with the permission of the American Center for Law and Justice.
Laura Brown Hernandez is a Senior Research Counsel at the American Center for Law and Justice (ACLJ) emphasizing in constitutional litigation at the federal appellate level and has participated as amicus curiae counsel in numerous cases before the U.S. Supreme Court. A graduate of The University of Richmond Law School in Richmond, Virginia, Hernandez clerked for the Honorable John D. Butzner of the U.S. Court of Appeals for the Fourth Circuit before gaining extensive experience in private practice at law firms in Richmond and Norfolk, Virginia. She has served as an adjunct professor of legal writing at Regent University where her husband, Michael V. Hernandez, serves as Professor of Law.