Rarely do challengers of landmark legislation get a second bite at the apple in constitutional litigation. Thanks to some enterprising state attorneys general, however, champions of limited government may have another chance to overturn the signature overreach of the Obama Administration. Six years after Obamacare was initially upheld, opponents of the law (technically “The Patient Protection and Affordable Care Act,” or “ACA”) are preparing a second test case, based—ironically enough—on the implausible rationale of the initial ruling.

The U.S. Supreme Court upheld the ACA in NFIB v. Sebelius, 567 U.S. 519 (2012), despite a compelling Commerce Clause challenge, solely on the basis of Chief Justice John Roberts’ theory that the ACA—which imposed a tax penalty to enforce its individual mandate--was a lawful exercise of Congress’ taxing power. This reasoning was roundly criticized as a flimsy makeweight, but Roberts’ controversial 5-to-4 decision carried the day, and a GOP-controlled Congress lacked the resolve to repeal the Obamacare altogether.

So matters stood until December 22, 2017, when President Trump signed into law the much-heralded tax reform legislation, the Tax Cuts and Jobs Act of 2017, which eliminated the tax penalty in ACA. Thus, the scant fig leaf of constitutionality concocted by Sebelius no longer justifies the monstrosity of Obamacare. Roberts’ life-line to ACA rested entirely on Congress’ taxing power; his novel opinion in Sebelius squarely rejected the Commerce Clause to compel consumers to purchase a good or service against their wishes. “The Commerce Clause is not a general license to regulate an individual from cradle to grave,” Roberts stated.  

On February 26, 2018, a 20-state coalition led by Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel filed a declaratory relief action in the Northern District of Texas, seeking a ruling from Judge Reed O’Connor that ACA’s individual mandate—without any accompanying exercise of Congress’ taxing power—is unlawful, rendering ACA unconstitutional in its entirety. Texas and Wisconsin are joined in the lawsuit by Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah and West Virginia.

The strategy of the lawsuit, styled Texas v. United States, resembles a chess match, with General Paxton and his counterparts advancing toward the outcome denied Obamacare opponents in Sebelius. Even the liberal Politico concedes that “the state officials behind this suit are painstakingly plotting their path. Judge Reed C. O’Connor, who was assigned the case in a U.S. District Court in Texas, ruled in 2016 against Obamacare regulations prohibiting insurers, doctors and hospitals from discriminating against transgender patients or women who have had an abortion.”

“Texans have known all along that Obamacare is unlawful and a divided Supreme Court’s approval rested solely on the flimsy support of Congress’ authority to tax. Congress has now kicked that flimsy support from beneath the law,” Attorney General Paxton said. “The U.S. Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional. With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of Obamacare, once and for all.”

Severability, which consumed 90 minutes of oral argument in 2012, is a key issue. The four dissenters in Sebelius ruled that the individual mandate was not severable from the rest of the statute, but Roberts was silent on that issue. The litigation has just begun. Stay tuned.


Mark Pulliam, writing from Austin, Texas, is a contributing editor to Law and Liberty and a longtime member of the Federalist Society. He blogs at Misrule of Law.