July 12, 2019


Absurd, Shocking, Embarrassingly Bad: So say conservatives about Trump's health care lawsuit. (David Leonhardt, 7/11/19, NY Times)

[E]ven some conservative legal experts who supported past efforts to throw out the law think this challenge is outrageous. Jonathan Adler of Case Western University has called the current case "just absurd," as well as "unmoored" and "shocking." Ted Frank, a lawyer at the Competitive Enterprise Institute, called the trial judge's decision "embarrassingly bad." Ilya Somin of George Mason University has signed a brief opposing the lawsuit.

And conservative writers including Philip Klein of the Washington Examiner and the Cato Institute's Michael Cannon have criticized the lawsuit. The headline on Klein's piece is: "I hate Obamacare, but Texas judge's decision on its unconstitutionality is an assault on the rule of law."

How has this case managed to go so far? Jonathan Cohn of HuffPost has written a helpful summary.

The brief version is: The Supreme Court ruled in 2012 that the health law was legal even though it overreached in requiring people to buy health insurance, because that requirement -- known as the mandate -- wasn't really a requirement. People could choose not to have insurance and instead pay a fee, which meant that the mandate was more akin to a tax on the uninsured.  Congress clearly has the right to impose taxes.

Trump's tax law, passed in 2017, reduced this fee on the uninsured to zero. In the current lawsuit, the plaintiffs have taken advantage of this change to argue that the mandate is now back to being a mandate rather than a tax -- even if it's an irrelevant mandate, because ignoring it brings no penalty. As Cohn wrote, "It doesn't take a fancypants law degree to see that the new scheme is, if anything, less intrusive than the old one -- a point that the attorneys for California and the U.S. House [who were arguing against the Trump administration] made several times."

Given the advantages of incumbency and the inheritance of the Obamaconomy, Donald still has a non-zero chance of re-election, unless he succeeds in demolishing Obamacare.

Posted by at July 12, 2019 2:22 PM